1

FIRST DIVISION

Contrary to law.

Accused Eleuterio de Leon was arrested on 13 April 1993, 3 and afterwards,

he filed a motion to fix bail. 4 Accused Reynaldo Manayao, on the other
hand, was arrested on 24 May 1993. 5

G.R. No. 115367 September 28, 1995

Upon their separate arraignments, 6 the accused entered a plea of not

guilty. Thereafter, the court conducted hearings on the motion to fix bail
with the express agreement between the parties that the evidence to be
presented at such hearings would be considered as evidence on the merits
of the case. 7

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ELEUTERIO DE LEON and REYNALDO MANAYAO, accused.
ELEUTERIO DE LEON, accused-appellant.
DAVIDE, JR., J.:
Accused-appellant Eleuterio de Leon seeks the reversal of the decision of
the Regional Trial Court (RTC) of Bulacan, Branch 15, in Criminal Case No.
2320-M-92 finding him and his co-accused, Reynaldo Manayao, guilty
beyond reasonable doubt of the crime of murder and sentencing each of
them to suffer the penalty of reclusion perpetua; to indemnify the heirs of
the victim jointly in the amount of P50,000.00; and to pay the victim's wife
the amounts of P180,000.00 as actual damages and P100,000.00 as moral
damages. Accused Reynaldo Manayao chose not to appeal from the
decision.
1

In an information filed with the trial court on 10 November 1992, the

accused were charged with the crime of murder, defined and penalized
under Article 248 of the Revised Penal Code, committed as follows:
That at or about 10:00 o'clock in the morning of August 23, 1992,
in the Municipality of Angat, Province of Bulacan, Philippines and
within the jurisdiction of this Honorable Court, the abovenamed
accused, armed with Armalite rifles and Caliber .45 pistols,
conspiring, confederating together and helping one another, with
common design, with treachery, taking advantage of superior
strength, with the aid of armed men, employing means to the [sic]
weaken the defense or of means or persons to insure or afford
impunity, and with evident premeditation, and with intent to kill,
did then and there wilfully, unlawfully and feloniously ambush,
attack and shoot from behind Marcelino Santiago who was hit at
the head while he was driving his owner-type jeep, and as a result
he died instantaneously to the prejudice and damage of his legal
heirs.

The prosecution presented three witnesses: the two eyewitnesses, namely,

Simon Mariano, a farmer from Angat, Bulacan, and Ramon Chavez, an
employee of Robal Transit; and SPO2 Alfredo Bartolome. The substance of
their testimony was that at approximately 9:30 a.m. of 23 August 1992 in
the vicinity of the Robal Transit Terminal in Angat, Bulacan, they saw the
accused gun down Marcelino Santiago, one of the managers of Robal
Transit, while the latter was driving his jeep. Mariano was walking in the
opposite direction that the jeep was headed, 8 while Chavez was following
the vehicle of the victim as the former wanted to tell the latter something.
9

The victim's jeep had already passed Mariano when the shots were fired.
Turning around, Mariano saw the accused shooting the victim, with de Leon
holding an Armalite at waist level and Manayao, a .45 caliber pistol at
shoulder height. 10 Mariano heard six shots in all. As he was only about ten
meters away from the accused, he could still see the gun barrels emitting
smoke. After shooting the victim, both accused, joined by a third male
whom Mariano could not identify, left the area by leisurely walking towards
an alley, which was right in front of Mariano. Mariano immediately
recognized the two accused because they were his townmates. Mariano
went home at once. It was only after the funeral that he told the wife of the
victim that he knew her husband's killers. He then gave his statement to
the police. 11
Chavez was on the street in front of the bus terminal and about six meters
from the accused when the latter fired at the victim. Because of fear,
Chavez went inside the bus terminal, only to return to the scene of the
crime later to assist in carrying into the funeral parlor's vehicle the body of
the victim, which was then slumped sidewise in his jeep. The jeep had
swerved to the sidewalk after the victim was hit. Later that day, Chavez

2
informed the victim's wife that he had witnessed the commission of the
crime. 12

Manayao showing that the latter had pending cases for illegal possession
of firearms, robbery in band, extortion, and destruction of property. 20

SPO2 Alfredo Bartolome, a police investigator, took down the statement of

Simon Mariano on 24 August 1992. 13

Senior Inspector Feliciano testified on the arrest by his team of accused

Reynaldo Manayao, who was included in their order of battle, being a
leader of an "organized syndicated crime group." 21

Immediately after the termination of the testimony of Bartolome, the trial

court orally denied the application for bail because the evidence of guilt of
the accused is strong. 14 It then required the prosecution to present its
other witnesses. 15
The prosecution forthwith presented Dr. Rosauro Villarama, the Municipal
Health Officer of Angat, Bulacan, who performed an autopsy on the
cadaver of the victim, Marcelino Santiago, at 11:00 a.m. of 23 August
1992. 16 He found one gunshot wound on the victim's head, the entry point
being above the right ear and the point of exit, "slightly above 3 in. front of
left ear," causing a fracture and laceration. He concluded that the cause of
the victim's death was "cerebral hemorrhage, gunshot wound, head." 17
This gunshot wound was caused by an Armalite. 18
After Dr. Villarama completed his testimony, the trial court dictated an
order 19 formally denying the petition for bail because "[s]ufficient evidence
has been established to prove that the evidence of guilt of the accused is
strong."
Three additional witnesses were presented by the prosecution, namely,
Eduardo Valencia, Chief of the Intelligence and Investigation Division of the
Angat Police Station; Senior Inspector Carlito Feliciano, Chief of the Angat
Police Station; and Mrs. Mercedes Villarama-Santiago, widow of the victim.
Valencia declared that upon receiving a report from PO3 Enriquez about a
shooting incident at the bus terminal of Sta. Maria Liner, he, together with
two other companions, went to the terminal and found the jeep of
Marcelino Santiago on the right side of the road going to Bustos with the
corpse of Santiago bathed in blood. They tried to run after the assassins.
Failing to catch the latter, they returned to the scene of the crime where
they found empty cartridges from an Armalite. Thereafter, they called their
district office, which sent investigators to whom Valencia turned over the
empty cartridges. During the investigation, Simon Mariano told him that
the assassins were the accused herein. Valencia then prepared a spot
report. At the trial, he submitted a case folder of accused Reynaldo

Mrs. Santiago declared that she and the victim were married in 1966 and
were blessed with five children. She believed that her husband was killed
because of his having testified on the Tuesday preceding his death in a civil
case involving the lot rented by Robal Transit or because of business
competition between Robal Transit and Sta. Maria Liner. Her husband
earned from P25,000.00 to P30,000.00 a month as operations manager of
Robal Transit and as a farmer. For his burial, she spent P50,000.00 for the
casket; P60,000.00 for the burial lot; and P70,000.00 as miscellaneous
expenses. She left to the discretion of the court the determination of the
monetary value of the moral shock and anxiety she suffered as a
consequence of the death of her husband. 22
The appellant interposed alibi as his defense. He presented three
witnesses to corroborate his story, namely, Elmer Tosoc, Manuel Santos,
and Cezar Santos. He declared that in the morning of 23 August 1992, he
was waiting for his salary to be paid at the house of Architect Elmer Tosoc
in Tibagan, Bustos, Bulacan. The latter employed him as a custodian of
construction materials at job sites. He did not leave the Tosoc residence at
any time on the date in question. He further claimed that prosecution
witness Simon Mariano bore a grudge against him, as he (appellant)
fathered a child with Mariano's niece seven years prior and did not marry
the woman. 23
On cross-examination, the appellant admitted that Tibagan, Bustos,
Bulacan, was only about eight kilometers away from Angat, Bulacan, and
that it would take approximately half an hour to traverse the distance by
bus or passenger jeep. 24 He also admitted that he had known Simon
Mariano for about seven years and that if Mariano saw him during the day,
Mariano could easily recognize him. 25
On 23 March 1994, the trial court promulgated the challenged decision
wherein it gave full faith and credence to the prosecution's evidence and
declared the alibi offered by the defense to be feeble. Thus:

3
Alibi is not a proper defense where it is not impossible for the
accused to be at the scene of the crime and no improper motive
was shown against the witnesses who identified the accused.
Again, the defense of alibi cannot prevail over positive
identification of the accused by the prosecution witnesses and
because it was not physically impossible for said accused to be at
the scene of the crime at the time of commission considering the
proximity of the place where the accused were, hence, the defense
of alibi is rejected. The testimony of the eyewitnesses are sufficient
for conviction. Mariano's and Chavez' testimonies were sufficient to
convict both accused because it was given unhesitatingly in a
straight forward manner and it was full of details which by their
nature could not have been merely invented. The Court again
considered the fact that alibi is one of the weakest defense[s] an
accused can invoke, easily lending itself to concoction and
embroidery. It must invariably be viewed with suspicion and may
be considered only when established by positive, clear and
satisfactory evidence to be given credence. It must not only appear
that the accused interposing the same was at some other place but
only that it was physically impossible for them to be at the scene
of the crime at the time of its commission. In the case at bar, both
accused testified that they are only about 5 minutes away from the
scene of the incident and has all the time and opportunity to
perpetuate the crime.
In addition thereto, there maybe some few discrepancies and
inconsistencies in the testimonies of the witnesses for the
prosecution but they refer to minor details and do not in actuality
touch upon the basic aspects of the why's and where of the crime
committed, thus, credibility is not impaired. 26
As earlier adverted to, only appellant Eleuterio de Leon appealed from the
decision. In his Brief, he assigns the following errors:

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE

EVIDENCE FOR THE PROSECUTION AND IN THE PROCESS DISREGARDING
THE DEFENSE OF ALIBI OF THE ACCUSED-APPELLANT.
II
ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY THE TRIAL COURT
ERRED IN NOT FINDING HIM GUILTY ONLY OF HOMICIDE.
We find no merit in the appeal.
In his first assigned error, the appellant invites our attention to alleged
material inconsistencies in the testimonies of the eyewitnesses.
First, he alleges that Mariano's testimony regarding the relative positions of
the victim and the appellant is contradictory. He cites Mariano's initial
testimony that the two accused were behind the victim when they shot
him. Then, he proceeds to point out that under questions from the court,
Mariano said that the two accused were facing the jeep when they shot the
victim; yet, the medico legal officer testified that the bullet entered the
victim's right ear, clearly showing that the assailants were on the right side
of the victim. 27
This alleged inconsistency is more apparent than real for the appellant is
merely confused as to the juxtaposition of the accused and the victim. The
Appellee, however, has put things and people in their proper place and
explains:
Facing the victim's jeepney does not mean that the gunwielders
were right in front of the victim's jeep and they shot the victim
frontally. It only means that the gunwielders were facing towards
the jeep (not necessarily the front portion thereof) when they shot
the victim. But as the physical evidence indicates the gunwielders
must [have] be[en] facing towards the rear side of the jeep when
they shot the victim as the latter was actually hit from behind. 28
Second, the appellant calls this Court's attention to the portion of Mariano's
testimony that the appellant was more or less six to seven meters away
from the victim, while Chavez testified that the appellant was
approximately twelve meters away from the victim. These estimations, the
appellant concludes, are "incredible" in light of the medico-legal officer's

4
testimony that the gunman must have been about one meter away when
he fired the shots. 29 Such a conclusion is baseless and can only stem from
a misreading of the transcript of the stenographic notes to mislead this
Court. It is based on a single clarificatory question propounded by the
lower court to the medico-legal officer, viz.,

Q Do I understand Mr. witness, that . . . the street there [sic] was a busy
street meaning that there were so many vehicles that were parked along
the highway?

Q One (1) meter?

Q Not even a Sta. Maria Liner parked along the highway?

A Yes, sir.

A None, sir.

30

The appellant clearly overlooked the immediately preceding question and

the corresponding answer of the medico-legal officer which indubitably
showed that the distance was more than one meter. Thus:
Q Can you determine the distance of the gunman?
A It is possible that the gunman is more than 1 meter [away].
supplied)

31

A At that time there was [sic] none, sir.

35

The appellant admitted during cross-examination that Mariano could have

easily recognized him, since Mariano and the appellant had known each
other for at least seven years. 36 The veracity of the positive identification
is strengthened by the trial court's efforts to satisfy itself with the certainty
of the eyewitnesses' identification of the perpetrators of the crime as
shown by the following questions it asked them and their answers thereto:

(emphasis
Court: [addressing eyewitness Mariano]

Third, the appellant points out that at first Mariano testified that he had
heard six shots, but later he said that he had heard only three shots. 32
This inconsistency was never shown to be of crucial importance as to affect
the credibility of the witness. It is to us a minor, if not trivial one.

Q Now, the 2 accused both are charged with a grave offense and you are
pointing your finger at them as the culprit[s]. Since the penalty here is very
grave, you must be sure of your statement? Now, I will ask you, are you
sure that these 2 accused were the ones who shot Santiago?

Inconsistencies in the testimony of prosecution witnesses with respect to

minor details and collateral matters do not affect the substance of their
declaration, their veracity, or the weight of their testimony. In fact, these
inconsistencies, if only in minor details, reinforce rather than weaken their
credibility, for it is usual that witnesses to a stirring event would see
differently some details of a startling occurrence. Rather than discredit the
testimony of the witnesses, such discrepancies serve to add credence and
veracity to their categorical, straightforward, and spontaneous testimony.

A Yes, sir.

33

The appellant next contends that Mariano could not have clearly seen the
incident, as Mariano "was already several meters away not to mention the
fact that it was a busy street then being a Sunday and at a time when
people were on the street attending to their Sunday obligations. 34 The
contemplation lacks any semblance of substantiation. There is unrebutted
evidence that the street was not bustling with activity that fateful morning
when the crime was committed. Thus:

37

Court: [addressing eyewitness Chavez]

Q Do you know that if you are testifying falsely, these two (2) persons
might go to jail and taste a life sentence?
A Yes, sir.
Q You still claim that they were the killers?
A Yes, sir.
Court:
Q Walang kargo de konsiyensiya, hindi ka nagkakamali?

5
A Hindi po. 38
Fast realizing that his cause lacks the proverbial "leg to stand on," the
appellant capitalizes on Mariano's admission that he was charged with
homicide or murder before another court. He then submits that no
credence could be given to Mariano because the latter was himself
accused of having killed somebody. 39 Such a submission fails to impress
us. Section 20, Rule 130 of the Rules of Court provides that except as
provided for in the succeeding sections [Sections 21, 22, 23, 20, and 25],
all persons who can perceive, and perceiving, can make known their
perception to others, may be witnesses. Religious or political belief,
interest in the outcome of the case, or conviction of a crime unless
otherwise provided by law, shall not be a ground for disqualification.
Clearly, the mere pendency of a criminal case against a person does not
disqualify him from becoming a witness. As a matter of fact, conviction of a
crime does not disqualify such person from being presented as a witness
unless otherwise provided by law. 40
The appellant's claim that Mariano bore a grudge against him because he
(appellant) impregnated Mariano's niece was not established by credible
proof.
In an attempt to discredit the other eyewitness, Chavez, the appellant
contends that the former "is only an afterthought witness to shore up the
sinking ship of Simon Mariano" as evidenced by the fact that he "informed
the authorities . . . only nine (9) months after the killing and was an
employee of the company owned by the victim." 41
We are not persuaded. We agree with the following counter-arguments of
the Appellee, thus:
As regards Ramon Chavez, he substantially corroborated the
testimony of Simon Mariano on all significant points. The fact that
he stepped forward as [an] eyewitness only after nine months
following the incident, does not per se destroy his credibility.
People's natural hesitation to get involved in cases, whether civil or
criminal, is a matter of public knowledge. Also, the fact that Ramon
Chavez was a subordinate employee of the victim . . . does not
diminish his truthfulness as a witness. On the contrary, being an
employee of Robal Transit, Ramon Chavez would only be interested
to punish the real wrongdoer in the murder of his boss . . . . 42

The natural reticence of most people to get involved as a witness in a

criminal case is of judicial notice. Their failure to submit to an investigation
by any public authority or to execute a sworn statement does not by itself
diminish or impair their credibility. 43 We need only to reiterate here what
we stated in People vs. Kyamko: 44
Not every witness to a crime can be expected to act reasonably
and conformably to the expectation of mankind. Human nature
teaches us that people may react differently to the same situation.
One person's spontaneous or unthinking, or even instinctive,
response to a horrid and repulsive stimulus may be aggression
while other's may be cold indifference. We have taken judicial
notice of the fact that witnesses in our country are reluctant to
volunteer information to the authorities. In any event, [the witness]
did in fact immediately inform the victim's mother of the stabbing
incident. This was sufficient to remove any doubt that he had
witnessed the commission of the crime.
Chavez testified that he did not go to the police because he was afraid. 45 It
was only on 31 May 1993, or a week after the arrest of accused Manayao
but a day before the court started hearing the case, that he went to see
Prosecutor Alberto Vizcocho and volunteered to testify in this case. 46
Anyhow, the fact remains that he told the victim's wife on the day the
shooting incident took place that he had witnessed the killing. 47
With respect to the presence or absence of an ulterior motive, this Court
has had occasion to rule that the relation of superior and subordinate, by
itself, does not constitute such ulterior motive:
[A] witness' relationship to a victim, far from rendering his
testimony biased, would even render it more credible as it would
be unnatural for a relative who is interested in vindicating the
crime to accuse somebody other than the real culprit. Nor is the
testimony of a witness discredited by the mere fact that he is an
employee of the complainant. 48
Having now come full circle, this Court is left with no recourse but to reject
the defense of alibi invoked by the appellant.
We have time and again ruled that alibi is the weakest of all defenses, for it
is easy to fabricate and difficult to prove; it cannot prevail over the positive

6
identification of the accused by the witnesses. 49 Moreover, for the defense
of alibi to prosper, the requirements of time and place must be strictly met.
It is not enough to prove that the accused was somewhere else when the
crime was committed, but he must also demonstrate by clear and
convincing evidence that it was physically impossible for him to have been
at the scene of the crime at the time the same was committed. 50
In the instant case, such physical impossibility was not shown to have
existed. By the appellant's own admission, the place where he claimed to
be was only about eight kilometers away from the scene of the crime and
that it would have taken only half an hour to traverse the distance by bus
or passenger jeep. 51 Such distance was not so great as to preclude his
having been at the scene of the crime when the shooting occurred.
The appellant's second assigned error must also fail. The trial court
appreciated against the appellant the qualifying circumstances of
treachery and use of superior force and armed men, which are alleged in
the information. We agree in its appreciation of treachery. There is
treachery when the offender commits any of the crimes against the
person, employing means, methods, or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to
himself arising from the defenses which the offended party might make. 52
As correctly contended by the Appellee:
The factual milieu of the case undeniably shows that the qualifying
circumstance of treachery attended the killing of the victim. The
attack was synchronal, sudden and unexpected, with the assailants
each armed with high-powered weapons. In fine, the attack was
carried out in such a manner that the victim was totally helpless
and in no position to either fight back or escape. Moreover, in view
of the fact that the assailants fired at the victim as the latter was
driving his jeep, the inescapable conclusion is that the attack was
coolly and deliberately adopted . . . to ensure its accomplishment
without risk to themselves arising from the defense which the
victim might put up. 53
We are in full accord with the said contention. Given the attendant
circumstances, it cannot be disputed that the appellant employed means
and methods in the execution of the crime which directly and especially
insured such execution without the slightest risk to themselves, since the
victim did hot have the slightest chance to defend himself.

The trial court, however, should not have appreciated the other qualifying
aggravating circumstance of "use of superior force and armed men." In
using this phrase, the trial court must have had in mind the qualifying
aggravating circumstances of (a) with the aid of armed men and (b) taking
advantage of superior strength, which are distinct from each other. 54
Taking advantage of superior strength is absorbed in treachery, i.e., it
cannot be estimated as an independent aggravating circumstance when
treachery is present. 55 There is, as well, no factual basis for the other
aggravating circumstance which, of course, presupposes the presence of
armed men other than the accused themselves.
WHEREFORE, the instant appeal is DISMISSED, and the challenged decision
of Branch 15 of the Regional Trial Court of Bulacan in Criminal Case No.
2320-M-92 is AFFIRMED in toto, with costs against the appellant.
SO ORDERED.

7
EN BANC

and ordering that the records of the cases be forwarded to the Office of the
Provincial Prosecutor for appropriate action.

G.R. Nos. 118940-41 and G.R. No. 119407 July 7, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GREGORIO MEJIA y VILLAFANIA, EDWIN BENITO, PEDRO PARAAN,
and JOSEPH FABITO, accused-appellants.
DAVIDE, JR., J.:
In the evening of 10 March 1994, along the expressway at Barangay
Ventinilla, Sta. Barbara, Pangasinan, several persons on board a passenger
jeepney driven by Teofilo Landingin attacked the latter and a passenger,
Virgilio Catugas, thereby inflicting upon them multiple stab wounds.
Landingin was pulled out from his seat and dumped on the shoulder of the
road. One of the attackers took the wheel of the jeepney and drove away.
Catugas was thrown out to the middle of the road when the jeepney
started to move away. Landingin died as a consequence of the injuries he
sustained. Catugas survived.
Held to account for the above acts were Gregorio Mejia, Edwin Benito,
Pedro Paraan, Joseph Fabito, Romulo Calimquim, one alias Dennis, Alex
Mamaril, one alias Mondragon, and another unidentified person. Mejia and
Benito were taken into police custody a few hours after the incident;
Paraan, the following day; and Fabito, five days after. Calimquim was found
dead three days after the incident in question, while the others have
remained at large. Three separate criminal complaints for murder, 1
frustrated murder, 2 and violation of R.A. No. 6539 (Anti Carnapping Act of
1992, as amended) 3 were filed against them with the Municipal Trial Court
of Sta. Barbara, Pangasinan.
Despite service on them of subpoenas requiring submission of counteraffidavits, accused Mejia, Benito, Paraan, and Fabito and did not submit
their counter-affidavits.
On 9 May 1994, Judge Lilia C. Espanol issued an order 4 declaring the
accused "to have waived their right to be heard in preliminary
investigation"; finding a prima facie case against the accused;
recommending that they be charged with and prosecuted for the crimes of
murder, frustrated murder, and violation of R.A. No. 6539, as amended;

After appropriate proceedings, the Office of the Provincial Prosecutor of

Pangasinan filed with the Regional Trial Court (RTC) of Dagupan City three
separate informations for murder, frustrated murder, and violation of the
Anti-Carnapping Act of 1972, as amended, against the aforenamed
persons. The informations were docketed as Criminal Cases Nos. 94-00617D, 94-00619-D, and 94-00620-D, respectively. The first was later amended.
The accusatory portions of the informations read as follows:
CRIMINAL CASE NO. 94-00617-D (as amended)
That on or about March 10, 1994 in the evening along the
expressway at barangay Ventinilla, Municipality of Sta. Barbara,
province of Pangasinan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, armed with
knives with intent to kill, treachery, evident premeditation and
taking advantage of superior strength, conspiring, confederating
and mutually helping one another, did then and there wilfully,
unlawfully and feloniously attack and stab TEOFILO LANDINGIN
inflicting upon him stab wounds which caused his instant death to
the damage and prejudice of his heirs.
Contrary to Art. 248 of the Revised Penal Code as amended by
Republic Act No. 7659. 5
CRIMINAL CASE NO. 94-00619-D
That on or about March 10, 1994 in the evening along the
expressway at barangay Ventinilla, Municipality of Sta. Barbara,
province of Pangasinan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, armed with
knives and with intent to kill, treachery, evident premeditation, and
taking advantage of superior strength, conspiring, confederating
and mutually helping one another, did then and there wilfully,
unlawfully and feloniously attack and stab VIRGILIO CATUGAS Y
CASTAEDA inflicting upon him multiple stab wounds, the accused
having then performed all the acts of execution which would have
produced the crime of Murder as a consequence but which
nevertheless, did not produce it by reason of causes independent

8
of the will of the accused and that is due to the timely and able
medical assistance rendered to said Virgilio Catugas y Castaeda
which prevented his death to his damage and prejudice.
Contrary to Art. 248 in relation with Art. 6 of the Revised Penal
Code. 6

their defense, accused Mejia, Benito, Paraan, and Fabito took the witness
stand. They also presented as additional witnesses Roberto Lambot, Shirley
Lomboy, Conrado Benito, policeman Bernardo Clemente, and Felicidad
Fabito in their evidence in chief and Julia Paraan as sur-rebuttal witness.
The evidence for the prosecution in these cases may be summarized as
follows:

CRIMINAL CASE NO. 94-00620-D

That on or about March 10, 1994 in the evening along the
expressway at barangay Ventinilla, Municipality of Sta. Barbara,
province of Pangasinan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused armed with knives
by means of violence against person by stabbing to death TEOFILO
LANDINGIN, owner-driver of a passenger jeep bearing Plate No.
APP-432 with marking Lovely and thereafter with intent to gain,
conspiring, confederating and mutually helping one another did
then and there wilfully, unlawfully and feloniously take and drive
away said passenger jeep bearing Plate No. APP-432 with marking
Lovely owned and driven by Teofilo Landingin without the latter's
consent, to the damage and prejudice of his heirs.
Contrary to Republic Act 6539 as amended. 7
The first two were assigned to Branch 44 of the RTC of Dagupan City
presided by Judge Crispin C. Laron (hereafter, LARON court) and thereafter
consolidated and jointly tried. The third was assigned to Branch 43 of the
said court presided by Judge Silverio Q. Castillo (hereafter, CASTILLO
court).
At their arraignments, Mejia, Benito, Paraan, and Fabito entered a plea of
innocence in each case.
I
THE CASE IN THE LARON COURT
In Criminal Case No. 94-00617-D (Murder) and Criminal Case No. 94-00619D (Frustrated Murder) in the LARON court, the prosecution presented the
following witnesses: Virgilio Catugas, policemen Dominguillo Gulen and
Bernardo Clemente, Dr. Cristito Garcia, Ma. Nora Landingin, and Dr.
Roberto Valenzuela. Virgilio Catugas was recalled as rebuttal witness. In

At around 7:00 p.m. of 10 March 1994, Virgilio Catugas was in front of the
CSI Supermarket in Dagupan City waiting for a transportation to take him
to his home at Talibaew, Calasiao, Pangasinan. Later, a passenger jeepney
plying the Dagupan City Calasiao route and driven by Teofilo Landingin
arrived. He boarded it and occupied that portion of the passengers' seat
behind the driver's seat. There were already some passengers inside the
jeepney, but they disembarked before the jeepney reached the boundary
of Dagupan City and Calasiao, leaving behind Landingin, Catugas, and two
other passengers. 8
When the jeepney reached the MacArthur Highway in San Miguel, Calasiao,
nine persons flagged down the jeepney and boarded it. One of them, whom
Catugas identified to be accused Edwin Benito, sat beside the driver; the
rest took the passenger seats behind the driver's seat. Catugas fully
recognized Benito because there was light at the ceiling of the jeepney and
at the "signboard" portion of the jeepney and the latter sometimes turned
his face toward the back where Catugas was seated. Catugas had further
observed Benito's face, ears, and eyes. 9 He also recognized accused Mejia,
Fabito, and Paraan. 10
The nine passengers told Landingin that they were bound for Pangasinan
Village Inn (PVI) in Bued, Calasiao. But when they reached PVI, one of them
said that his companions did not know where they were going, and
informed Landingin that he would take care of the fare upon reaching
Nansangaan, Sta. Barbara, Pangasinan. Upon reaching Nansangaan, one of
the nine passengers asked Landingin to drive a little farther. Later, Mejia
asked Catugas whether he was Landingin's companion; Catugas answered
in the affirmative. Mejia then announced: "[T]his is a hold-up"; while Benito
said: "[N]obody will be able to be saved his life [sic]." Another companion
of Mejia said: "Proceed." All of the nine drew their daggers and stabbed
Landingin and Catugas. 11
Landingin died on that same evening. Dr. Cristito Garcia, who conducted an
autopsy on Landingin's cadaver, found three stab wounds two of which

9
were fatal. According to him, the cause of Landingin's death was
cardiorespiratory arrest resulting from hypovolemic shock due to internal
hemorrhage. 12 Nora Landingin, wife of Teofilo Landingin, spent P1,500 daily
during the wake of her husband; P12,000 for his burial; and P16,000 for the
tomb. Nora felt sad because of his death. 13

Also on 11 March 1994, at 12:00 noon, some concerned citizens of Sual

apprehended Joseph Fabito in Sitio Looc, Poblacion Sual, as a murder
suspect. He was turned over to the Sual Police Station. After having been
informed of this arrest, the Sta. Barbara Police Station took him into its
custody. These facts were entered in the Sual Police Station blotter. 19

On the other hand, Catugas, who was pushed out of the jeepney and
landed on the road, was brought by some people to the Villaflor Memorial
Hospital. 14 Dr. Roberto Valenzuela performed on Catugas exploratory
laparatomy debridement and found three multi-lacerations in the right
upper extremities and several others on the left upper extremities which
could have been caused by bladed instruments. 15 Catugas survived and
was confined for seven days. He spent more than P50,000 for his
hospitalization and medical expenses. The hospital billed him in the
amount of P44,667.25. 16

The accused admitted to having flagged down and boarded Landingin's

jeepney that fateful evening of 10 March 1994, but denied having
committed the crimes. They claimed that it was Romulo Calimquim and his
companions who killed Landingin, stabbed Catugas, and drove away the
jeepney. The following is a summary of their version of the events.

In the same evening of 10 March 1994, while Policeman Dominguillo Gulen

of the Mabini Police Station, Mabini, Pangasinan, was approaching his
residence at the poblacion in Sual, Pangasinan, on board a police patrol
car, he saw six men walking in front of his house. When he stopped the
car, the men ran away. He gave chase and caught two of them, namely,
accused Mejia and Benito. Gulen thought that they belonged to an "akyatbahay gang." When asked what they were doing, the two answered that
they were not doing anything and that they were not robbers. They told
Gulen that they were from Sta. Barbara. Benito even showed his driver's
license and told Gulen that he did not commit any crime and that he was
willing to go to the police station. Gulen then brought the two and turned
them over to the police station in Sual, Pangasinan. 17
Policeman Bernardo Clemente, who was the desk officer at 1:00 a.m. of 11
March 1994, entered in the police blotter this turn-over and talked to the
two. In the course of their conversation, Benito reported that they rode on
a jeepney, which was abandoned somewhere in Sual. Clemente decided to
make a follow-up of this report. With Benito as their guide, Clemente and
three other policemen were able to find the jeepney with the marking
LOVELY in Sitio Nipa, Barangay Baguioen, Sual, Pangasinan. The jeepney
had bloodstains on the front and back seats. They brought it to the police
station and had the matter recorded in the police blotter. Clemente then
instructed the radio operator to call the police station of Sta. Barbara and
inform it of the turn-over of Mejia and Benito. At 1:45 a.m. of 11 March
1994, the PNP elements of Sta. Barbara Police Station came and received
the two, as well as the passenger jeepney. 18

Edwin Benito, a resident of Ventinilla West, Sta. Barbara, Pangasinan, was

the driver of the Elf truck of Lito Lomboy of Bued, Calasiao, Pangasinan,
which was used in hauling sand and gravel. His co-accused Mejia Paraan
and Fabito were his helpers.
At around 3:00 p.m. of 10 March 1994, after they completed delivering
sand and gravel, the accused returned the truck and went to the house of
Fabito's brother-in-law in San Miguel, Calasiao. After two hours of waiting in
vain for the brother-in-law, Paraan suggested that they go to the house of
his future brother-in-law in Bacayao Norte, Calasiao. After some snacks
they proceeded to the town proper and strolled for a while. Then, Benito
thought that it was time to go home to Sta. Barbara and suggested that
they should. They proceeded to a waiting shed near the National High
School to wait for a transportation for Sta. Barbara. At the waiting shed,
they saw Romulo Calimquim with three other companions, who were also
waiting for a transportation for Sta. Barbara. Calimquim then flagged down
an approaching passenger jeepney. He and his companions boarded it. So
did Benito and his companions. Calimquim sat beside the driver. The rest
took the back seat. 20
According to Paraan, it was Alex Mamaril, the man with a "huge body," who
sat beside the driver. 21
At the junction of the roads leading to the Municipal Hall of Sta. Barbara
and that leading to the national highway, the man who sat beside the
driver (Calimquim, according to Benito; Mamaril, according to Paraan)
ordered the driver to proceed to the national highway; the driver did. But
after reaching the highway, in Ventinilla, Sta. Barbara, the former ordered
the latter to stop, announced that "this is a hold up," then stabbed the
driver several times, pulled his body out of the jeepney, took over the

10
wheel, and drove the jeepney. 22 In the meantime, at the back seat, one of
the companions of Calimquim pointed a knife at Benito; while the others
told Benito's companions to lie on their belly. It was when Catugas
attempted to fight back that he was stabbed. 23 Catugas was then thrown
out of the jeepney. 24
Benito and his companions were prevented by the group of Calimquim
from alighting from the jeepney. Upon reaching a mountain in Sual,
Pangasinan, 25 the man on the wheel ordered Benito, Mejia, Paraan, and
Fabito to alight from the jeepney. The group of Calimquim pointed knives 26
and a
gun 27 at them. Then suddenly there was a light coming from below. They
ran away from the group of Calimquim. 28
Benito and Mejia were together. 29 Later, a policeman saw them. The two
told the policeman that they are not "troublesome persons." The policeman
brought them to the Police Station of Sual. There, Benito reported what had
happened and accompanied the policemen to the place where the jeepney
in question was located. 30 Afterwards, the two were detained at Sta.
Barbara Police Station. While in detention, they were informed that
Calimquim was killed and his body was found in Alaminos. 31
Paraan lost his way. He returned to Sta. Barbara only on 14 March 1994
and went to the house of Roland, his brother-in-law, in Bacayao Norte, to
ask him to request a barangay councilman to accompany him to the police
station. It was the barangay captain who accompanied him the following
day to the police station. There, the police authorities told him that he was
among the assailants of Landingin and that he was the one who stabbed
Catugas in the night of 10 March 1994 and one of the suspects in the
carnapping of the jeepney of Landingin. 32 Paraan was forthwith placed
inside the jail.
Fabito stayed for awhile in the mountain. At 2:00 a.m. of 11 March 1994, he
was by the seashore. He stayed there until 6:00 a.m. and inquired from
someone the location of the police station. He went to that station which
happened to be Sual Police Station. There, he narrated to the policemen
what had happened. When a policeman asked him whether he was the
killer, he answered in the negative. At around 1:00 p.m., he was brought to
the Sta. Barbara Municipal Jail, where he was detained for three months.
Then, he was committed to the Provincial Jail. 33

Sometime after Catugas was discharged from the hospital and was already
driving a tricycle, the parents of the accused met with him and informed
him that the accused told them that they (the accused) did not commit any
wrong. Catugas answered that he had suffered several wounds and spent
much for his hospitalization and that since the accused were the ones
apprehended, he would just tell a lie so he could recover the amounts he
spent. Catugas then asked P20,000 from each of the accused, or a total of
P80,000, and repeated this demand five to six times. 34
The defense, through the testimony of Policemen Bernardo Clemente, also
proved that Romulo Calimquim died due to a gunshot wound on 13 March
1994 in Barangay Paitan West, Sual, Pangasinan, as evidenced by Entry No.
4338 of Page 260 of the Police Blotter. 35
On rebuttal, Catugas insisted that it was accused Edwin Benito who
stabbed Landingin and that accused Mejia, Paraan, and Fabito were the
ones who stabbed him. He further declared that it was the parents of the
accused who offered to pay him, but he refused because such an offer
could not "be accepted by [his] conscience." 36
The defense then presented Julia Paraan as surrebuttal witness. She
denounced as untrue the testimony on rebuttal of Catugas that the parents
of accused were the ones who offered to pay him money. Julia declared
that they visited Catugas to ask him whether it was true that their children
committed the crime. On their first visit, Catugas told them that he could
not yet answer that question; but when they returned, Catugas told them
that they had to pay the aggregate sum of P80,000, or P20,000 per family
of the accused. 37
The trial court gave full credit to the version of the prosecution and relied
heavily on the identification of the accused by Catugas, the absence of
ulterior motive on the part of the latter, and the offer of the parents of the
accused to compromise the cases.
In its decision dated 17 November 1994, 38 the LARON court convicted
accused Mejia, Benito, Paraan, and Fabito of the crime of murder and of
frustrated murder, with treachery as the qualifying circumstance and
nighttime and band as aggravating circumstances. Accordingly, it
sentenced the first three accused to suffer the penalty of death for the
crime of murder; and ten years and one day of prision mayor to seventeen
years, four months, and one day of reclusion temporal for the crime of
frustrated murder. It credited Paraan with the privileged mitigating

11
circumstance of minority, he being only seventeen years old at the time of
the commission of the crimes charged; and sentenced him to reclusion
perpetua for murder, and six years of prision correccional to ten years an
one day of prision mayor for frustrated murder. The Court also ordered the
four accused to pay the heirs of Teofilo Landingin the amounts of P50,000
as death indemnity; P16,000 for the cost of the tomb; and P12,000 for
funeral expenses; and to pay Catugas the amount of P44,687.25 for
hospital expenses, plus costs.
II
THE CASE IN THE CASTILLO COURT
In Criminal Case No. 94-00620-D (violation of the Anti-Carnapping Act) in
the CASTILLO Court, the prosecution presented as its witnesses Virgilio
Catugas and Nora Landingin. The former was recalled as rebuttal witness.
The accused Mejia, Benito, Paraan, and Fabito took the witness stand and
presented as additional witnesses Conrado Benito and Felicidad Fabito.
Their testimonies were substantially the same as those they made in the
murder and frustrated murder cases in the LARON court.
Prosecution witness Virgilio Catugas added that after Landingin was
stabbed, he was thrown out of the jeepney to the shoulder of the road and
that one of the culprits took the wheel of the jeepney, started off its
engine, and drove off. 39 He further declared that while he was confined at
the hospital, the policemen of Sta. Barbara investigated him, showed him
pictures of the suspects, supplied the suspect's names, 40 and took his
statement. 41 After he was discharged therefrom, he was able to talk with
the father of accused Benito. He told the father of his hospitalization
expenses and asked P80,000, as a settlement of the case, to be paid by
the parents of the accused on an agreed date; but before that date came,
he had already testified against the accused. 42
Prosecution witness Nora Landingin, widow of Teofilo Landingin, further
testified that her husband owned the passenger jeepney in question, as
evidenced by Certificate of Registration No. 19253856, 43 and Official
Receipt No. MVRR 91354948. 44 The jeepney was worth P140,000. 45
The CASTILLO court gave full faith to the testimony of Virgilio Catugas. It
debunked the version of the defense on account of the following
"inculpating evidence," which, according to it, bolstered its finding that the
accused were the authors of the crime charged:

1. Accused Gregorio Mejia, Edwin Benito, Joseph Fabito and Pedro

Paraan speak of innocence and fear for their lives during the
ruthless incident, unfortunately they never sustained any bodily
injury on their bodies.
If the intention of Mok Calimquim and company is to hurt anybody,
they could not have concentrated on the persons of Teofilo
Landingin and Virgilio Catugas only but they should have also
inflicted stabbing thrusts against their persons (accused).
2. They (accused) posited that for fear of their lives they did not do
anything except to passively stay at the back seat of the jeepney
motionless from the place of stabbing incident in Sta. Barbara,
Pangasinan up to the mountains in Sual, Pangasinan.
Again, if one of the motives of Mok and company is to carnapp [sic]
the passenger jeepney of Teofilo Landingin then the logical
conclusion that can be had in the instant situation is for the group
of Mok to liquidate the driver and all passengers for that matter,
including the four (4) accused to eliminate the presence of
eyewitnesses.
Unfortunately, the four (4) accused joined the group of Mok in
going to Sual, Pangasinan without offering any slight resistance in
the premises.
The natural conclusion that can be derived thereat is that, Mok and
company belonged to the group of the four (4) accused who were
responsible in perpetrating the offense charged.
3. Assuming en gratia argumenti that Mok and company are the
real offenders, why is it that during the long span of travel from
Sta. Barbara to Sual, they never made any attempt to jump off the
passenger jeepney; neither did they show positive signs to invite
the attention of PNP members stationed along the long route
starting in Dagupan City, Binmaley, Lingayen, Bugallon, Labrador,
Pangasinan.
4. Accused Gregorio Mejia and Edwin Benito steadfastly claim
innocence of the crime charged. In fact, they averred that upon
reaching Sual, Pangasinan, they reported to the responding peace

12
officers what happened to them and that their reports was
recorded in the Police Blotter of Sual Station.
The assertion of accused Benito and Mejia is tainted with absolute
falsity and is debunked by the entry in the Police Blotter of Sual
Police Station (Exh. G); the subject certification negates accused's
statement of innocence. The subject entry which is contained in
the Book of Events of Sual Police Station belies any
complaint/report made by accused Edwin Benito/Gregorio Mejia
that they were kidnapped or deprived of their liberty with the use
of guns and bladed weapons. Upon the other hand, the
Certification squarely bespeaks of the incarceration/detention of
said accused (Mejia and Benito) at Sual Police Station for they were
suspected of having carnapped the passenger jeepney involved in
the above case.
5. With respect to accused Joseph Fabito and Pedro Paraan, they
likewise vehemently denied the accusation lodged against them.
Unfortunately, their conclusion of innocence crumbled when they
joined the group from the crime scene starting in Sta. Barbara,
Pangasinan up to their destination in Sual, Pangasinan. In fact
when they reached Sual, Pangasinan they scampered and run
away to different directions to avoid apprehension.
Instead of proceeding to the Sual Police Station or making any
report to the nearest authority i.e. Barangay Captain of the place
they decided to escape which they did with impunity. The records
in the Police Blotter of Sual is negatived (sic) of any entry about
the whereabouts of accused Paraan and Fabito. 46
The court then convicted accused Gregorio Mejia, Edwin Benito, Pedro
Paraan, and Joseph Fabito guilty of the violation of the Anti-Carnapping Act
of 1972, as amended. It sentenced the first three accused to death; and
Paraan, to reclusion perpetua on account of the privileged mitigating
circumstance of minority. It also ordered them to pay the costs.
III
THE APPEALS AND ASSIGNMENT OF ERRORS
Although review in cases where the death penalty is imposed by the trial
court is automatic pursuant to Section 22 of R.A. No. 7659, 47 the convicted

accused filed with this Court their notices of appeal from the decision of
the LARON court and of the CASTILLO court on 18 November 1994 and 22
February 1995, respectively.
Criminal Cases Nos. 94-00617-D and 94-00619-D were docketed in this
Court as G.R. Nos. 118940-41, and Criminal Case No. 94-00620-D was
docketed as G.R. No. 119407.
On 2 February 1996, after they filed separate Appellant's Briefs in G.R. Nos.
118940-41 and in G.R. No. 119407, the appellants filed a motion for the
consolidation of these cases, which we granted on 27 February 1996.
In their Appellant's Brief in G.R. Nos. 118940-41, the appellants impute
upon the trial court the following errors: (a) in giving full faith and credence
to the unsubstantiated testimony of prosecution witness Virgilio Catugas
relative to the incident in question; (b) in holding them as the persons who
stabbed the jeepney driver and Virgilio Catugas in the evening of 10 March
1994 despite the fact that clear and convincing evidence were proffered to
point at the real culprits, Romulo Calimquim and his companions; (c) in
rendering a verdict of conviction notwithstanding the failure of the
prosecution to prove their guilt beyond reasonable doubt; and (d) in
convicting them of the crimes charged instead of the crimes homicide and
frustrated homicide on the assumption that they are guilty.
Being interrelated, the appellants discussed jointly these assigned errors.
They submit that:
(1) The uncorroborated testimony of Catugas on the identification
of the appellants leaves much to be desired. He should not be
believed, for he could not even remember who among the
appellants were wearing short pants, hat, and shoes at that time. If
policeman Gulen could not even identify in court appellant Mejia
whom he apprehended in the evening of 10 March 1994 and
brought to the Sual Police Station, it was with more reason that
Catugas could not have identified the assailants since it was
nighttime. The possibility that Catugas got confused, if not
mentally and physically drained, as a result of the shocking
incident is not far-fetched. There is then a very strong and
compelling reason to believe that Catugas mistook the appellants
as the real hold-uppers.

13
(2) Catugas told Conrado Benito and Felicidad Fabito that their
children did not commit any wrong, but Catugas "vacillated and
testified falsely against accused-appellants when they were not
able to produce the amount of P20,000.00 each as earlier
demanded from them." Catuga's denial of their testimony is selfserving and cannot overcome the positive testimony of Conrado
and Felicidad.
(3) The actuations of appellants specifically that of Edwin Benito
augurs well with their claim of innocence," when they were
apprehended. Benito readily showed his driver's license, answered
questions propounded by policeman Clemente, and without
hesitation he helped or guided the policemen in locating the
jeepney at the place where it was abandoned. He did not try to
hide or conceal anything when he was confronted about the
incident. Moreover, when Benito and Mejia were picked up by a
policeman on that fateful night, they were not "tainted with blood."
(4) On the assumption that they are guilty they could only be liable
for homicide and frustrated homicide, since treachery was not
established.
In their Appellants' Brief in G.R. No. 119407, they make the following
assignment of errors: (a) the facts charged in the information do not
constitute violation of the crime of Anti-Carnapping Act of 1972, as
amended; (b) The court a quo erred in convicting them of the crime
charged on the basis of surmises and conjecture; and (c) the court a quo
erred in convicting them by relying fully on the evidence of the prosecution
and completely disregarding the evidence of the defense.
As to the first, the appellants argue that intent to gain, which is an
essential ingredient of the crime of carnapping, was not proved. They claim
that from the evidence adduced "it is very clear that the incident was only
a hold-up and that the jeepney was taken to Sual as escape vehicle."
In support of the second and third assigned errors, which they discussed
jointly, the appellants submit that:
(1) The trial court's conclusion on their culpability was based on
mere surmises and conjectures and contradicted by the evidence
on the record. The fact that the group of Calimqium did not hurt

any of the four appellants and that the latter offered no resistance
does not prove appellant's membership in Calimquim's group. That
they did not even jump off the passenger jeepney or show positive
signs to invite the attention of the PNP stationed along the route
from Dagupan City to Sual, it was because of fear since
Calimquim's group pointed knives at each of them and ordered
them to lie down in stooping position. The absence of conspiracy
was shown by the fact that in Sual, after they were released as
hostages, they ran in separate directions and did not join the group
of Calimquim.
(2) The entry in the Sual Police Station police blotter that Benito
and Mejia were suspected of having carnapped the passenger
jeepney does not bind them, for it was made by a police officer and
was contrary to what they had reported.
(3) There is no basis for the conclusion that Paraan and Fabito had
escaped.
(4) The trial court should not have relied on the testimony of
Catugas whose identification of the appellants was based only on
the pictures and on the information of the policemen. It was
impossible for Catugas to narrate in detail the participation of each
accused, considering that the light in the jeepney was dim and his
principal attention was concentrated on defending himself.
(5) Appellant's reporting of the incident disproved their
membership in the group of Calimquim. If they were members,
their natural course would have been to hide from the authorities.
Their voluntary submission to the police immediately after the
incident should have been given credence as part of the res
gestae.
In the Consolidated Appellee's Brief, the Office of the Solicitor General
(OSG) urges us to affirm in toto the challenged decisions for failure of the
appellants to show that the trial court committed error in finding the
prosecution evidence clear, sufficient, and convincing to convict. Catugas,
who made an eyewitness account, had the opportunity to observe the
appellants during the commission of the crime and had no ill-motive to
implicate the appellants falsely. As to the charge that he perjured because
the appellants were not able to produce the amount of P80,000 which he
allegedly demanded from them, the same should not be believed. The

14
truth is, it was the parents of the appellants who approached Catugas and
offered him P80,000 in order that he would not testify against the
appellants. Catugas did not accept the offer, as it was against his principles
to tell a lie.
The OSG also maintains that treachery was duly proved and, hence, the
trial court was correct in convicting the appellants of murder for the death
of Teofilo Landingin and frustrated murder for stabbing Virgilio Catugas.
Their conviction for violation of the Anti-Carnapping Act is also proper,
since their main purpose was to get the jeepney and they killed Landingin
in order that they could get it. They presented to evidence to prove that
they ran away with the jeepney for any lawful purpose.
In their Consolidated Reply Brief, the appellants try to show that the
identification made by prosecution witness Catugas cannot be
denominated as clear, positive, and convincing; for, while it may be true
that he "could have taken glimpse or glance at the faces of all the accusedappellants, this fact alone is not adequate and fell short of the required
test of 'positive identification'." They strongly suggest that Catugas had illmotive to testify falsely against them in that he was not paid the P80,000
he demanded.
IV
THE CRIMES COMMITTED AND THE
ISSUE OF CULPABILITY OF APPELLANTS
Before we go any further, remarks on some procedural matters are in
order. The crimes charged in the informations filed before the LARON court
and CASTILLO court are irretrievably linked with or related to one another.
They arose out of the same incident, are founded on the same factual
milieu, and would be proved by testimonies of the same witnesses. The
three cases then should have been consolidated and jointly tried in one
branch of the RTC of Dagupan City. What were jointly tried were only the
cases for murder and frustrated murder. Section 14 of Rule 119 of the
Rules of Court provides:
Sec. 14. Consolidation of trials of related offenses. Charges for
offenses founded on the same facts or forming part of a series of
offenses of similar character may be tried jointly at the court's
discretion.

The purpose or object of consolidation is to avoid multiplicity of suits,

guard against oppression or abuse, prevent delay, clear congested
dockets, simplify the work of the trial court, and save unnecessary cost or
expense; in short, the attainment of justice with the least expense and
vexation to the parties
litigants. 48 In Raymundo v. Elipe, 49 we held that although consolidation of
several cases involving the same parties and the same subject matter is
one addressed to the sound discretion of the trial court, joint hearing
becomes a matter of duty if two or more cases are tried before the same
judge, or even filed with the different branches of the same court,
provided one of such cases has not been partially tried.
We are unable to understand why neither the LARON court or the CASTILLO
court nor any of the parties caused, or moved for, a consolidation of the
case for violation of the Anti-Carnapping Act (which has the higher docket
number) with the cases for murder and frustrated murder in the LARON
court (which have lower docket numbers). It was only after the filing of
their separate Appellant's Brief in G.R. Nos. 118940-41 and in G.R. No.
119407 that the appellants moved to consolidate the latter with the
former.
This failure to consolidate the three cases at the trial court level could
contribute some difficulty in the appreciation of the evidence. The principal
witnesses of the parties testified in all the three cases. Yet, the assessment
of their testimony and credibility in the LARON court must not be
influenced by their testimonies in the case before the CASTILLO court, and
vice versa. In the LARON court, prosecution witness Catugas was unclear in
some details of the incident, but clear in the CASTILLO court. Upon the
other hand, there were details he disclosed in one of the courts which were
not given in the other court. The same observation may be had on the
testimonies of the appellants before both courts. As one reads the
transcripts of the testimonies of these witnesses in both cases, it would be
quite difficult to avoid forming impressions in light of the totality of their
testimonies in both courts. Our minds and mental processes must be kept
away from the pitfalls of such impressions, for the rules on evidence and
the constitutional presumption of innocence in favor of the appellants
dictate that we resolve the appeals in the cases before the LARON court
and the case before the CASTILLO court solely on the basis of the evidence
presented before such courts, respectively.
The next preliminary matter to be resolved is whether the crimes of
murder in Criminal Case No. 94-00617-D and frustrated murder in Criminal

15
Case No. 94-00619-D are absorbed in the violation of the Anti-Carnapping
Act in Criminal Case No. 94-00620-D.
R.A. No. 7659 which took effect on 31 December 1993 50 is applicable to
these cases because the crimes were committed on 10 March 1994.
Section 14 of the Anti-Carnapping Act was amended by Section 20 of R.A.
No. 7659 and now imposes the penalty of reclusion perpetua to death
when the owner, driver, or occupant of the carnapped motor vehicle is
killed or raped in the course of the commission of the carnapping or on the
occasion thereof. This Section, as amended, reads in full as follows:
Sec. 14. Penalty for Carnapping. Any person who is found guilty
of carnapping, as this term is defined in Section Two of this Act,
shall, irrespective of the value of motor vehicle taken, be punished
by imprisonment for not less than fourteen years and eight months
and not more than seventeen years and four months, when the
carnapping is committed without violence or intimidation of
persons, or force upon things; and by imprisonment for not less
than seventeen years and four months and not more than thirty
years, when the carnapping is committed by means of violence
against or intimidation of any person, or force upon things; and the
penalty of reclusion perpetua to death shall be imposed when the
owner, driver or occupant of the carnapped motor vehicle is killed
or raped in the course of the commission of the carnapping or on
the occasion thereof . (Emphasis supplied).
In the original Section 14 of R.A. No. 6539, the last clause read as follows:
and the penalty of life imprisonment to death shall be imposed
when the owner, driver or occupant of the carnapped vehicle is
killed in the commission of the carnapping. (emphasis supplied).
Three amendments have thus been made, viz: (1) the change of the
penalty of life imprisonment to reclusion perpetua, (2) the inclusion of
rape, and (3) the change of the phrase "in the commission of the
carnapping" to "in the course of the commission of the carnapping or on
the occasion thereof." The latter makes clear the intention of the law to
make the offense a special complex crime, by way of analogy vis-a-vis
paragraphs 1 to 4 of Article 294 of the Revised Penal Code on robbery with
violence against or intimidation of persons. As such, the killing (or the
rape) merely qualifies the crime of carnapping which for lack of specific
nomenclature may be known as qualified carnapping or carnapping in an

aggravated form. In short, considering the phraseology of the amended

Section 14, 51 the carnapping and the killing (or the rape) may be
considered as a single or indivisible crime or a special complex crime
which, however, is not covered by Article 48 of the Revised Penal Code.
Since Section 14 of R.A. No. 6539 uses the words "IS KILLED," no distinction
must be made between homicide and murder. Whether it is one or the
other which is committed "in the course of carnapping or on the occasion
thereof" makes no difference insofar as the penalty is concerned.
It follows then that the killing of the driver, Teofilo Landingin whether it
be homicide or murder cannot be treated as a separate offense, but
should only be considered to qualify the crime of carnapping.
Nonetheless, although there could only be one single offense of qualified
carnapping or carnapping in an aggravated form, the prosecution had still
to prove the essential requisites of the homicide or murder of Landingin
and that of carnapping. This should have been another reason for the
consolidation of the carnapping case in the CASTILLO court with the cases
before the LARON court.
But do the words "IS KILLED" in the last clause of Section 14 of R.A. No.
6539, as amended, include the crime of frustrated murder or homicide? Put
a little differently, does murder or homicide in its frustrated stage also
qualify carnapping if it is committed "in the course of the commission of
the carnapping or on the occasion thereof"? The answer must be in the
negative in light of the use in said Section 14 of the words "IS KILLED". The
unmistakable import thereof is that it refers only to the consummated
felony of either murder or homicide.
If attempted or frustrated murder or homicide is committed "in the course
of the commission of the carnapping or on the occasion thereof," then it
must be deemed to fall under the clause (of Section 14) "when the
carnapping is committed by means of violence against or intimidation of
any person."
We shall now take up the issue of the culpability of the appellants.
The evidence adduced by the prosecution has established beyond
reasonable doubt the carnapping of Teofilo Landingin's passenger jeepney,
which is a motor vehicle under the definition in Section 2 of R.A. No. 6539.

16
The passenger jeepney was taken, with intent of gain, from Landingin by
means of violence against him which caused his death and against a
passenger, Virgilio Catugas, who suffered physical injuries.
52

But, has the prosecution established with moral certainty the guilt of the
appellants? The LARON and the CASTILLO courts held that it did.
Enshrined in the Bill of Rights is the right of the accused to be presumed
innocent until the contrary is proved. 53 To overcome the presumption,
nothing but proof beyond reasonable doubt must be established by the
prosecution. 54 Save in certain circumstances as where, for instance, the
accused admits the commission of the acts alleged to constitute a crime
but interposes justifying circumstances, the burden is never shifted to the
accused or diminished by the weakness of his defense. Indeed, unless the
prosecution successfully discharges that burden, the accused need not
even offer evidence in his behalf. 55
In our jurisdiction accusation is not synonymous with guilt. The freedom of
the accused is forfeit only if the requisite quantum of proof necessary for
conviction be in existence. This, of course, requires the most careful
scrutiny of the evidence for the State, both oral and documentary,
independent of whatever defense is offered by the accused. Every
circumstance favoring the accused's innocence must be duly taken into
account. The proof against the accused must survive the test of reason.
Strongest suspicion must not be permitted to sway judgment. The
conscience must be satisfied that on the accused could be laid the
responsibility for the offense charged. 56 If the prosecution fails to
discharge the burden, then it is not only the accused's right to be freed; it
is, even more, the court's constitutional duty to acquit him. 57
After a painstaking review of the records and the transcripts of the
stenographic notes of the testimonies of the witnesses in the cases before
the LARON court and the CASTILLO court, we are not convinced with moral
certainty that the appellants committed the crimes charged. Reasonable
doubt burdens our conscience; our minds cannot rest easy on a verdict of
conviction.
The prosecution had nine suspects in these cases: the four appellants and
the five others, namely, Romulo Calimquim, Alex Mamaril, a certain Dennis,
a certain Mondragon, and another described as John Doe. All nine were
forthwith charged with the crimes of murder, frustrated murder, and
carnapping in Criminal Cases Nos. 3310, 58 3313, 59 3311, 60 respectively, of

the Municipal Trial Court of Sta. Barbara, Pangasinan, and then in the
informations in Criminal Cases Nos. 94-00617-D, 61 and 94-00619-D 62 of
the LARON court and Criminal Case No. 94-00620-D 63 of the CASTILLO
court, respectively.
The theory of the appellants is that they were not members of the group of
Romulo Calimquim. The prosecution has no proof to prove otherwise; but
the LARON and the CASTILLO courts, through inferences from certain facts,
concluded that the appellants were. The conclusion is rather tenuous.
While the rigorous cross-examination of the appellants in all these cases
has established close relationship among the appellants by reason of their
residence and work, (Benito, as sand-and-gravel truck driver and Mejia,
Fabito, and Paraan as his keepers), it miserably failed to establish any
relationship between them and the five others headed by Calimquim. What
then looms large in our minds is that the appellants and the five others
happened to be passengers of Landingin's jeepney by accident, not by
design. If the appellants were with the five others until Sual, Pangasinan, it
was because they were intimidated and made to lie down on their belies
inside the jeepney.
Another circumstance further proves that the appellants did not belong to
the group of Calimquim. Upon arrival in the mountains of Sual, they fled
from the Calimquim group when the first opportunity to do so came. We
find to be absolutely without basis the statement of the CASTILLO court
that the appellants abandoned Landingin's jeepney in Sitio Nipa, Baquioen,
Sual, Pangasinan, "upon seeing the arrival of concerned citizens and
members of the Sual Police Station; the responding peace officers effected
the recovery of the subject jeepney sans the accused/culprits." No
prosecution witness so testified. In the CASTILLO court, no policeman was
presented as witness for the prosecution. The evidence presented by both
the prosecution and the defense reveal that after appellants Benito and
Mejia were picked up by Policeman Gulen on the latter's suspicion that
they were members of an akyat-bahay gang, they voluntarily informed the
police authorities of the Sual Police Station of what happened. It was this
information that brought the policemen to where the subject jeepney was
located. Benito even accompanied the policemen. This resulted in the
recovery of the jeepney by the policemen. Appellant Paraan also presented
himself later to the Police Station of Sta. Barbara. Appellant Fabito,
although apprehended by concerned citizens of the place to where he had
fled, voluntarily reported what he knew to the police authorities of Sual and
Sta. Barbara.

17
Unfortunately, the CASTILLO court relied heavily on the entries in the
police blotters of the police stations of Sual and Sta. Barbara. The silence
of the entries on what the appellants had declared in court is not
conclusive evidence that they did not report the incident to the police
authorities. They had no participation in the preparation of the entries.
Entries in the police blotters should not be given undue significance or
probative value, for they are normally incomplete and inaccurate
sometimes from either partial suggestion of for want of suggestion or
inquiries. 64 The entries in question are sadly wanting in material
particulars. At the very most, they only recorded the impression that the
appellants were "suspects."

Q So, were it not of the police and the pictures, you were not able to
identify the accused, is that correct?

As to the alleged participation of the appellants in the commission of the

crimes, the prosecution had to rely solely on the testimony of Virgilio
Catugas. The totality of his testimony in the cases before the LARON court
leaves much to be desired. The prosecutor who conducted the direct
examination was unable to propound sensible questions to elicit clear
answers bound to reconstruct faithfully the events surrounding the
commission of the alleged crimes. This deficiency thus tempted the trial
judge to ask more questions. Despite the latter's participation, the
testimony of Catugas fails to convince us that the appellants indeed
participated in the commission of the crimes. On cross-examination in the
LARON court, Catugas categorically admitted that he did not know the
names of the appellants and that he could recognize only three of the nine
accused. Thus:

Q What you do mean when you said that that you can recognize three (3)
of them?

ATTY. TAMINAYA:
Q Now, in paragraph 8 of your statement, you said and you mentioned the
names of the person and I will now read:
Q How about the true names of the suspect, do you know them?
A In fact I do not know, however, based on the police investigation of Sta.
Barbara PNP, they were, Gregorio Mejia, Edwin Benito, Joseph Fabito, Pedro
Paraan, Mok Calimquim, alyas Dennis, Alex Mamaril, Dennis Abrigo alyas
Mondragon and one unidentified person.
can you tell this Court why these persons were written in your statement?
A Because of the police investigation.

A I can recognize the others, sir.

Q How many of the nine (9) can you recognize?
A Three (3) of them, sir.
COURT:

A I can remember those persons who sat near me.

Q Who of the four (4) accused who sitted [sic] near you?
A The one wearing red T-shirt, the second to the last of the four accused.
Q So, how were you able to identify these [sic] persons who is [sic] wearing
in [sic] red T-shirt?
A I saw his face, sir.
Q How were you able to recognize the last person (referring to Edwin
Benito)?
A He was besides [sic] the driver, Sir. 65
Further indicating the uncertainty of his identification, he made the
following admissions on cross-examination:
Q Now, you said you recognized the persons who sat besides [sic] the
driver, is it not?
A Yes, sir.
Q Please point to him?

18
A He was wearing a dark color.

A Me and the driver, sir.

Q Was it a T-shirt or a polo shirt?

PROS. MARATA:

A I cannot tell, sir.

Q How many times were you stabbed by the nine persons, four of whom
were inside the courtroom?

Q How about the person sitting in front of you whom you pointed to this
person wearing in red T-shirt?
A I can no longer remember, sir.
Q How about the person next to the one with red t-shirt, do you remember
his shirt?
A I don't know, sir.
Q How about Gregorio Mejia, do you remember his clothes?
A I cannot remember, sir.

A From the scar left of my body, there are 22 stabbed wounds, sir. 66
Yet, no further questions were asked for him to convincingly show that the
appellants inflicted any of the stab wounds on his body. Further
compounding the uncertainty and unreliability of Catuga's testimony, he
candidly admitted on cross-examination that only one person stabbed him.
Thus:
ATTY. TAMINAYA:
Q How many times were you stabbed by them?
A Twice, sir.

Q You can't remember also whether one of these accused was wearing a
hat at that time?

Q And you cannot recognize the person who stabbed your?

A I cannot remember, sir.

A I can identify him, sir.

In the case before the CASTILLO court, he declared that he was stabbed by
the nine persons. Thus:

Q How many persons stabbed you then?

A Only one (1) person, sir. 67

COURT:
Q Who were involved in stabbing?

Upon further questioning by the court, Catugas declared that six of the
nine stabbed him:

A All of them, sir.

COURT:

Q Who was the assailant and who was stabbed?

Q How many stab wounds did you sustain?

A The 9 persons, sir.

A More than twenty (20) stab wounds, sir.

Q When you said 9 persons, they were the 9 persons who participated in
the stabbing incident and who were the victims?

Q A while ago you mentioned there were two (2) initial stab blows with
respect to the other stab blow who delivered this stab blow?

19
A His companions and also Gregorio Mejia, sir.
COURT:

Moreover, on question by the trial judge in the CASTILLO court, Catugas

categorically admitted that none of the appellants participated in the
stabbing of Landingin. Thus:

Proceed.

COURT:

ATTY. TAMINAYA:

Q These two persons who participated in stabbing Teofilo Landingin, can

you inform the Court if the four (4) accused now or these two persons are
among the four (4) accused now?

Q When you said his companions and Gregorio Mejia are you referring to
the five (5) other persons as the companions of Gregorio Mejia who
participated in stabbing you?
A I think it is about six (6) of them who stabbed me, sir. 68
He could not remember anymore the person who inflicted the last stab
wound, and then declined to point to anyone of the herein four appellants
as the person who did it. Thus:
COURT:
Q When they stopped stabbing you they did not stab you anymore?
A They still stabbed me on my right upper arm, sir. (Witness showing his
scar near the shoulder.)

A They are not here, sir. 70

Finally, Catugas was not entirely free from any ulterior motive in
implicating the appellants. He admitted that he demanded P80,000 from
the parents of the appellants, but before they could give the money on the
agreed date, he testified against the appellants in the LARON court. The
following exchanges between him and counsel for the defense before the
CASTILLO court are revealing:
ATTY. TAMINAYA:
Q After you were released from the hospital, were you able to talk with the
father of Edwin Benito?
A Yes, sir.

Q You said you were stabbed on your right shoulder, who stabbed you
among these nine (9) persons?

Q And you told them about your expenses in the hospital, is that correct?

A I could not remember anymore, sir.

A Yes, sir.

Q When you said you cannot remember, you cannot tell this Court whether
it was one among the four (4) accused in this case who stabbed you on
your right upper arm?

Q And you demanded from them to pay P40,000.00 is that correct?

A I could not point the person responsible in stabbing my shoulder because

that is the last stab wound, sir. 69

COURT:

A I was asking P80,000.00, sir.

Q Why were you asking the amount of P80,000.00 then?

It would thus be sheer speculation and conjecture to conclude from
Catuga's testimony in the CASTILLO court that the appellants had inflicted
any of the stab wounds on Catugas.

A Because he pleaded to me, sir.

20
Q What you are trying to convey to the Court is that you are settling the
case with Edwin Benito the amount of P80,000.00?

ATTY. TAMINAYA:

A Yes, sir.

Q So, it is clear that if only they have given P80,000.00, you should not
have testified in this case?

COURT:

A PROSECUTOR MARATA:

Proceed.

Improper, your honor.

ATTY. TIMANAYA:

ATTY. TAMINAYA

Q And the parents of Edwin Benito cannot pay that P80,000.00 because
they are poor?

As follow-up question, you Honor.

COURT:

A They will not pay that amount on that date, we have agreed of another
date for them to pay, sir.

Sustained. Hypothetical.

COURT:

ATTY. TAMINAYA:

Q Did the parents of Edwin Benito made a counter offer?

Q You said that there was the agreed date, what happened on the agreed
date?

A That is already their counter proposal, sir.

A The date has not yet arrived but I have already testified, sir.
Q What you want to tell the Honorable Court is that you agreed to pay you
P80,000.00 but he cannot pay you at that very moment?
A Yes, sir.

COURT:
Q When you said you have already testified, you are referring to your
testimony in RTC Branch 44?

COURT:
A Yes, sir. 71
Proceed.
ATTY. TAMINAYA:
Q Did you agree for the amount of P80,000.00?
COURT:
That is the settlement money.

In the LARON court, efforts were made by the prosecution to cushion the
impact of Catugas' demand for payment of P80,000 in consideration of his
exculpatory testimony. It wanted to prove that the parents of the
appellants were in fact the ones who proposed. But the testimony of
Conrado Benito, which the prosecution failed to satisfactorily rebut, is that
the parents went to see him to verify whether their children had indeed
committed the crimes; but Catugas replied that since the appellants were
the ones apprehended, he would just pinpoint them so that he could
recover what he had spent. He then demanded P80,000, which he equally

21
apportioned among the parents of the four appellants. Conrado Benito
testified as follows:

But the parents could not deliver the P20,000 each was to pay, for they
could not afford it. Conrado so declared, thus:

Q What did you tell him?

ATTY. TAMINAYA:

A I told him that our children telling us that they did not commit any wrong
and I told them to tell the truth and we are not consenting them to
whatever they have done if they done something wrong.

Q When Virgilio Catugas told you to give P20,000.00, can you tell this court
if he made mention to the wife of Teofilo Landingin?

Q What was the answer of Virgilio Catugas?

A He said, he suffered several wounds and that he spent so much for his
hospitalization, and he said also that they were the persons who were
apprehended and so, I will just tell a lie for the same because how could I
collect for the amount I spent if I will not tell a lie?
COURT:
Q You consider Virgilio Catugas as a liar and you are not a liar?
A Yes, sir.
ATTY. TAMINAYA:
Q Can you tell this Court what did you tell him about that expenses?
A I said, "then we can at least help you", because he is saying that he
suffered several wounds.
Q How much did Virgilio Catugas tell you?
A The last time that we talked, he ask[ed] us to give P20,000.00 each.
COURT:
Q How many times did he tell your?
A For 5 to 6 times because he told us to return to him. 72

A Because he is collecting from us P20,000.00, he told us that we would

not tell the same to Mrs. Landingin.
Q Were you able to give that P20,000.00?
A No sir, not even a single centavo.
Q Why?
A We cannot pay because even payment for attorney's fees, we cannot
afford. 73
The LARON court gave credence to the version of the prosecution and even
took the incident as offer of compromise, which may be considered an
implied admission of guilt. Said court misapplied Section 27 of Rule 130 of
the Rules of Court. 74 There is no evidence whatsoever that any of the
appellants authorized his parents to approach Catugas or knew the matter
of payment of P80,000. Moreover, if one were to believe the explanation of
Catugas that the amount of P80,000 represented the expenses he incurred
for his hospitalization and medical bills, then the offer to reimburse it is not
admissible in evidence as proof of criminal liability pursuant to the last
paragraph of Section 27 of Rule 130.
On the whole then we entertain, unavoidably, serious doubt on the
participation of the appellants in the commission of the crimes charged.
WHEREFORE, the challenged decisions in Criminal Case No. 94-00617-D
(for Murder) and Criminal Case No. 94-00619-D (for Frustrated Murder) of
Branch 44 and in Criminal Case No. 94-00620-D (violation of AntiCarnapping Act of 1972) of Branch 43 of the Regional Trial Court of
Dagupan City are REVERSED. Accused-appellants Gregorio Mejia, Edwin
Benito, Pedro Paraan, and Joseph Fabito are ACQUITTED on the ground that
their guilt therefor has not been proved beyond reasonable doubt or with

22
moral certainty. Their immediate release from detention is hereby ordered,
unless other lawful and valid grounds for their further detention exist.
No costs.
SO ORDERED

23
SECOND DIVISION
G.R. No. 108253 February 23, 1994
LYDIA L. GERALDEZ, petitioner,
vs.
HON. COURT OF APPEALS and KENSTAR TRAVEL CORPORATION,
respondents.
REGALADO, J.:
Our tourism industry is not only big business; it is a revenue support of the
nation's economy. It has become a matter of public interest as to call for its
promotion and regulation on a cabinet level. We have special laws and
policies for visiting tourists, but such protective concern has not been
equally extended to Filipino tourists going abroad. Thus, with the limited
judicial relief available within the ambit of present laws, our tourists often
prefer who fail to deliver on their undertakings. This case illustrates the
recourse of one such tourist who refused to forget.
An action for damages by reason of contractual breach was filed by
petitioner Lydia L. Geraldez against private respondent Kenstar Travel
Corporation, docketed as Civil Case No. Q-90-4649 of the Regional Trial
Court of Quezon City, Branch 80. 1 After the parties failed to arrive at an
amicable settlement, trial on the merits ensued.
Culling from the records thereof, we find that sometime in October, 1989,
Petitioner came to know about private respondent from numerous
advertisements in newspapers of general circulation regarding tours in
Europe. She then contacted private respondent by phone and the latter
sent its representative, Alberto Vito Cruz, who gave her the brochure for
the tour and later discussed its highlights. The European tours offered were
classified into four, and petitioner chose the classification denominated as
"VOLARE 3" covering a 22-day tour of Europe for $2,990.00. She paid the
total equivalent amount of P190,000.00 charged by private respondent for
her and her sister, Dolores.
Petitioner claimed that, during the tour, she was very uneasy and
disappointed when it turned out that, contrary to what was stated in the
brochure, there was no European tour manager for their group of tourists,
the hotels in which she and the group were bullited were not first-class, the

UGC Leather Factory which was specifically added as a highlight of the tour
was not visited, and the Filipino lady tour guide by private respondent was
a first timer, that is, she was performing her duties and responsibilities as
such for the first time. 2
In said action before the Regional Trial Court of Quezon City, petitioner
likewise moved for the issuance of a writ of preliminary attachment against
private respondent on the ground that it committed fraud in contracting an
obligation, as contemplated in Section 1(d), Rule 57 of the Rules of Court,
to which no opposition by the latter appears on the record. This was
granted by the court a quo 3 but the preliminary attachment was
subsequently lifted upon the filing by private respondent of a counterbond
amounting to P990,000.00. 4
During the pendency of said civil case for damages, petitioner also filed
other complaints before the Department of Tourism in DOT Case No. 90121 and the Securities and Exchange Commission in PED Case No. 903738, 5 wherein, according to petitioner, herein private respondent was
meted out a fine of P10,000.00 by the Commission and P5,000.00 by the
Department, 6 which facts are not disputed by private respondent in its
comment on the present petition.
On July 9, 1991, the court a quo rendered its decision 7 ordering private
respondent to pay petitioner P500.000.00 as moral damages, P200,000.00
as nominal damages, P300,000.00 as exemplary damages, P50,000.00 as
and for attorney's fees, and the costs of the suit. 8 On appeal, respondent
court 9 deleted the award for moral and exemplary damages, and reduced
the awards for nominal damages and attorney's fees to P30,000.00 and
P10,000.00, respectively. 10
Hence, the instant petition from which, after sifting through the blades of
contentions alternately thrust and parried in the exchanges of the parties,
the pivotal issue that emerges is whether or not private respondent acted
in bad faith or with gross negligence in discharging its obligations under
the contract.
Both the respondent court and the court a quo agree that private
respondent failed to comply faithfully with its commitments under the
Volare 3 tour program, more particularly in not providing the members of
the tour group with a European tour manger whose duty, inter alia, was to
explain the points of interest of and familiarize the tour group with the
places they would visit in Europe, and in assigning instead a first timer

24
Filipino tour guide, in the person of Rowena Zapanta, 11 to perform that role
which definitely requires experience and knowledge of such places. It is
likewise undisputed that while the group was able to pay a visit to the site
of the UGC Leather Factory, they were brought there at a very late hour
such that the factory was already closed and they were unable to make
purchases at supposedly discounted prices. 12 As to the first-class hotels,
however, while the court a quo found that the hotels were not fist-class,
respondent court believed otherwise, or that, at least, there was
substantial compliance with such a representation.
While clearly there was therefore a violation of the rights of petitioner
under the aforementioned circumstances, respondent court, contrary to
the findings of the trial court, ruled that no malice or bad faith could be
imputed to private respondent, hence there is no justification for the award
of moral and exemplary damages. Furthermore, it held that while petitioner
is entitled to nominal damages, the amount awarded by the trial court was
unconscionable since petitioner did not suffer actual or substantial damage
from the breach of contract, 13 hence its reduction of such award as
hereinbefore stated.
After thorough and painstaking scrutiny of the case records of both the trial
and appellate courts, we are satisfactorily convinced, and so hold, that
private respondent did commit fraudulent misrepresentations amounting
to bad faith, to the prejudice of petitioner and the members of the tour
group.
By providing the Volare 3 tourist group, of which petitioner was a member,
with an inexperienced and a first timer tour escort, private respondent
manifested its indifference to the convenience, satisfaction and peace of
mind of its clients during the trip, despite its express commitment to
provide such facilities under the Volare 3 Tour Program which had the
grandiose slogan "Let your heart sing. 14
Evidently, an inexperienced tour escort, who admittedly had not even
theretofore been to Europe, 15 cannot effectively acquaint the tourists with
the interesting areas in the cities and places included in the program, or to
promptly render necessary assistance, especially where the latter are
complete strangers thereto, like witnesses Luz Sui Haw and her husband
who went to Europe for their honeymoon. 16
We agree with petitioner that the selection of Zapanta as the group's tour
guide was deliberate and conscious choice on the part of private

respondent in order to afford her an on-the-job training and equip her with
the proper opportunities so as to later qualify her as an "experienced" tour
guide and eventually be an asset of respondent corporation. 17
Unfortunately, this resulted in a virtual project experimentation with
petitioner and the members of the tour as the unwitting participants.
We are, therefore, one with respondent court in faulting private
respondent's choice of Zapanta as a qualified tour guide for the Volare 3
tour package. It brooks no argument that to be true to its undertakings,
private respondent should have selected an experienced European tour
guide, or it could have allowed Zapanta to go merely as an understudy
under the guidance, control and supervision of an experienced and
competent European or Filipino tour guide, 18 who could give her the
desired training.
Moreover, a tour guide is supposed to attend to the routinary needs of the
tourists, not only when the latter ask for assistance but at the moment
such need becomes apparent. In other words, the tour guide, especially by
reason of her experience in previous tours, must be able to anticipate the
possible needs and problems of the tourists instead of waiting for them to
bring it to her attention. While this is stating the obvious, it is her duty to
see to it that basic personal necessities such as soap, towels and other
daily amenities are provided by the hotels. It is also expected of her to see
to it that the tourists are provided with sanitary surroundings and to
actively arrange for medical attention in case of accidents, as what befell
petitioner's sister and wherein the siblings had to practically fend for
themselves since, after merely calling for an ambulance, Zapanta left with
the other tour participants. 19
Zapanta fell far short of the performance expected by the tour group, her
testimony in open court being revelatory of her inexperience even on the
basic function of a tour guide, to wit:
Q Now, are you aware that there were times that the tourists under the
"Volare 3" were not provided with soap and towels?
A They did not tell me that but I was able to ask them later on but then
nobody is complaining. 20 . . . .
The inability of the group to visit the leather factory is likewise reflective of
the neglect and ineptness of Zapanta in attentively following the itinerary

25
of the day. This incompetence must necessarily be traced to the lack of
due diligence on the part of private respondent in the selection of its
employees. It is true that among the thirty-two destinations, which
included twenty-three cities and special visits to nine tourist spots, this was
the only place that was not visited. 21 It must be noted, however, that the
visit to the UGC Leather Factory was one of the highlights 22 of the Volare 3
program which even had to be specifically inserted in the itinerary, hence
it was incumbent upon the organizers of the tour to take special efforts to
ensure the same. Besides, petitioner did expect much from the visit to that
factory since it was represented by private respondent that quality leather
goods could be bought there at lower prices. 23
Private respondent represents Zapanta's act of making daily overseas calls
to Manila as an exercise of prudence and diligence on the latter's part as a
tour guide. 24 It further claims that these calls were needed so that it could
monitor the progress of the tour and respond to any problem immediately.
25
We are not persuaded. The truth of the matter is that Zapanta, as an
inexperienced trainee-on-the-job, was required to make these calls to
private respondent for the latter to gauge her ability in coping with her first
assignment and to provide instructions to her. 26
Clearly, therefore, private respondent's choice of Zapanta as the tour guide
is a manifest disregard of its specific assurances to the tour group,
resulting in agitation and anxiety on their part, and which deliberate
omission is contrary to the elementary rules of good faith and fair play. It is
extremely doubtful if any group of Filipino tourists would knowingly agree
to be used in effect as guinea pigs in an employees' training program of a
travel agency, to be conducted in unfamiliar European countries with their
diverse cultures, lifestyles and languages.
On the matter of the European tour manager, private respondent's
advertisement in its tour contract declares and represents as follows:
FILIPINO TOUR ESCORT!
He will accompany you throughout Europe. He speaks your language,
shares your culture and feels your excitement.
He won't be alone because you will also be accompanied by a . . .
EUROPEAN TOUR MANAGER!

You get the best of both worlds. Having done so may tours in the past with
people like you, he knows your sentiments, too. So knowledgeable about
Europe, there is hardly a question he can't answer. 27
Private respondent contends that the term "European Tour Manager" does
not refer to an individual but to an organization, allegedly the Kuoni Travel
of Switzerland which supposedly prepared the itinerary for its "Volare
Europe Tour," negotiated with all the hotels in Europe, selected tourist
spots and historical places to visit, and appointed experienced local tour
guides for the tour group. 28
We regret this unseemly quibbling which perforce cannot be allowed to
pass judicial muster.
A cursory reading of said advertisement will readily reveal the express
representation that the contemplated European tour manager is a natural
person, and not a juridical one as private respondent asserts. A corporate
entity could not possibly accompany the members of the tour group to
places in Europe; neither can it answer questions from the tourists during
the tour. Of course, it is absurd that if a tourist would want to know how he
could possibly go to the nearest store or supermarket, he would still have
to call Kuoni Travel of Switzerland.
Furthermore, both lower courts observed, and we uphold their
observations, that indeed private respondent had the obligation to provide
the tour group not only with a European tour manger, but also with local
European tour guides. The latter, parenthetically, were likewise never
made available. 29 Zapanta claims that she was accompanied by a
European local tour guide in most of the major cities in Europe. We
entertain serious doubts on, and accordingly reject, this pretension for she
could not even remember the name of said European tour guide. 30 If such
a guide really existed, it is incredible why she could not even identify the
former when she testified a year later, despite the length of their sojourn
and the duration of their association.
As to why the word "he" was used in the aforequoted advertisement,
private respondent maintains that the pronoun "he" also includes the word
"it," as where it is used as a "nominative case form in general statements
(as in statutes) to include females, fictitious persons (as corporations)." 31
We are constrained to reject this submission as patently strained and
untenable. As already demonstrated, it is incredible that the word "he" was
used by private respondent to denote an artificial or corporate being. From

26
its advertisement, it is beyond cavil that the import of the word "he" is a
natural and not a juridical person. There is no need for further
interpretation when the wordings are clear. The meaning that will
determine the legal effect of a contract is that which is arrived at by
objective standards; one is bound, not by what he subjectively intends, but
by what he leads others reasonably to think he intends. 32
In an obvious but hopeless attempt to arrive at a possible justification,
private respondent further contends that it explained the concept of a
European tour manager to its clients at the pre-departure briefing, which
petitioner did not attend. 33 Significantly, however, private respondent
failed to present even one member of the tour group to substantiate its
claim. It is a basic rule of evidence that a party must prove his own
affirmative allegations. 34 Besides, if it was really its intention to provide a
juridical European tour manager, it could not have kept on promising its
tourists during the tour that a European tour manager would come, 35
supposedly to join and assist them.
Veering to another line of defense, private respondent seeks sanctuary in
the delimitation of its responsibility as printed on the face of its brochure
on the Volare 3 program, to wit:
RESPONSIBILITIES: KENSTAR TRAVEL CORPORATION, YOUR TRAVEL
AGENT, THEIR EMPLOYEES OR SUB-AGENTS SHALL BE
RESPONSIBLE ONLY FOR BOOKING AND MAKING ARRANGEMENTS
AS YOUR AGENTS. Kenstar Travel Corporation, your travel Agent,
their employees or sub-agents assume no responsibility or liability
arising out of or in connection with the services or lack of services,
of any train, vessel, other conveyance or station whatsoever in the
performance of their duty to the passengers or guests, neither will
they be responsible for any act, error or omission, or of any
damages, injury, loss, accident, delay or irregularity which may be
occasioned by reason (of) or any defect in . . . lodging place or any
facilities . . . . (Emphasis by private respondent.) 36
While, generally, the terms of a contract result from the mutual formulation
thereof by the parties thereto, it is of common knowledge that there are
certain contracts almost all the provisions of which have been drafted by
only one party, usually a corporation. Such contracts are called contracts
of adhesion, because the only participation of the party is the affixing of
his signature or his "adhesion" thereto. 37 In situations like these, when a
party imposes upon another a ready-made form of contract, 38 and the

other is reduced to the alternative of taking it or leaving it, giving no room

for negotiation and depriving the latter of the opportunity to bargain on
equal footing, a contract of adhesion results. While it is true that an
adhesion contract is not necessarily void, it must nevertheless be
construed strictly against the one who drafted the same. 39 This is
especially true where the stipulations are printed in fine letters and are
hardly legible as is the case of the tour contract 40 involved in the present
controversy.
Yet, even assuming arguendo that the contractual limitation aforequoted is
enforceable, private respondent still cannot be exculpated for the reason
that responsibility arising from fraudulent acts, as in the instant case,
cannot be stipulated against by reason of public policy. Consequently, for
the foregoing reasons, private respondent cannot rely on its defense of
"substantial compliance" with the contract.
Private respondent submits likewise that the tour was satisfactory,
considering that only petitioner, out of eighteen participants in the Volare 3
Tour Program, actually complained. 41 We cannot accept this argument.
Section 28, Rule 130 of the Rules of Court declares that the rights of a
party cannot be prejudiced by an act, declaration, or omission of another, a
statutory adaptation of the first branch of the hornbook rule of res inter
alios acta 42 which we do not have to belabor here.
Besides, it is a commonly known fact that there are tourists who, although
the tour was far from what the tour operator undertook under the contract,
choose to remain silent and forego recourse to a suit just to avoid the
expenses, hassle and rancor of litigation, and not because the tour was in
accord with was promised. One does not relish adding to the bitter memory
of a misadventure the unpleasantness of another extended confrontation.
Furthermore, contrary to private respondent's assertion, not only petitioner
but two other members of the tour group, Luz Sui Haw and Ercilla Ampil,
confirmed petitioner's complaints when they testified as witnesses for her
as plaintiff in the court below. 43
Private respondent likewise committed a grave misrepresentation when it
assured in its Volare 3 tour package that the hotels it had chosen would
provide the tourists complete amenities and were conveniently located
along the way for the daily itineraries. 44 It turned out that some of the
hotels were not sufficiently equipped with even the basic facilities and
were at a distance from the cities covered by the projected tour. Petitioner

27
testified on her disgust with the conditions and locations of the hotels,
thus:
Q And that these bathrooms ha(ve) bath tub(s) and hot and cold
shower(s)?

Luz Sui Haw, who availed of the Volare 3 tour package with her husband for
their honeymoon, shared the sentiments of petitioner and testified as
follows:
Q . . . Will you kindly tell us why the hotels where you stayed are not
considered first class hotels?

A Not all, sir.

Q Did they also provide soap and towels?
A Not all, sir, some (had) no toilet paper.

45

Q Which one?
A The 2 stars, the 3 stars and some 4 stars (sic) hotels.
Q What I am saying . . .
A You are asking a question? I am answering you. 2 stars, 3 stars and some
4 stars (sic) hotels, no soap, toilet paper and (the) bowl
stinks. . . .
Q And that except for the fact that some of these four star hotels were
outside the city they provided you with the comfort?
A Not all, sir.
Q Can you mention some which did not provide you that comfort?
A For example, if Ramada Hotel Venezia is in Quezon City, our hotel is in
Meycauayan. And if Florence or Ferenze is in manila, our hotel is in
Muntinlupa. 46
A One more hotel, sir, in Barcelona, Hotel Saint Jacques is also outside the
city. Suppose Barcelona is in Quezon City, our hotel is in Marilao. We looked
for this hotel inside the city of Barcelona for three (3) hours. We wasted our
time looking for almost all the hotels and places where to eat. That is the
kind of tour that you have. 47

A Because the hotels where we went, sir, (are) far from the City and the
materials used are not first class and at times there were no towels and
soap. And the two (2) hotels in Nevers and Florence the conditions (are)
very worse (sic). 48
Q Considering that you are honeymooners together with your husband,
what (were) your feelings when you found out that the condition were not
fulfilled by the defendant?
A I would like to be very honest. I got sick when I reached Florence and half
of my body got itch (sic). I think for a honeymooner I would like to
emphasize that we should enjoy that day of our life and it seems my feet
kept on itching because of the condition of the hotel. And I was so
dissatisfied because the European Tour Manager was not around there
(were) beautiful promises. They kept on telling us that a European Tour
Manager will come over; until our Paris tour was ended there was no
European tour manager. 49
Q You will file an action against the defendant because there was a
disruption of your happiness, in your honeymoon, is that correct?
A That is one of my causes of (sic) coming up here. Secondly, i was very
dissatisfied (with) the condition. Thirdly, that Volare 89 it says it will let
your heart sing. That is not true. There was no European tour (manager)
and the highlights of the tour (were) very poor. The hotels were worse (sic)
hotels. 50
Q All the conditions of the hotels as you . . .
A Not all but as stated in the brochure that it is first class hotel. The first
class hotels state that all things are beautiful and it is neat and clean with
complete amenities and I encountered the Luxembourg hotel which is quite
very dilapidated because of the flooring when you step on the side

28
"kumikiring" and the cabinets (are) antiques and as honeymooners we
don't want to be disturbed or seen. 51

A Yes, sir.
Q Saint Just Hotel, Barcelona is not a first class hotel?

Q None of these are first class hotels?

A Yes, sir.
A Yes, sir.
Q Hotel Pullman Nice neither is not a first class hotel?
Q So, for example Ramada Hotel Venezia which according to Miss Geraldez
is first class hotel is not first class hotel?

A Yes, sir.

A Yes, sir.

Q Hotel Prinz Eugen and Austrotel are not first class hotels?

Q You share the opinion of Miss Geraldez?

A Yes, sir.

A Yes, sir.

Private respondent cannot escape responsibility by seeking refuge under

the listing of first-class hotels in publications like the "Official Hotel and
Resort Guide" and Worldwide Hotel Guide." 53 Kuoni Travel, its tour
operator, 54 which prepared the hotel listings, is a European-based travel
agency 55 and, as such, could have easily verified the matter of first-class
accommodations. Nor can it logically claim that the first-class hotels in
Europe may not necessarily be the first-class hotels here in the Philippines.
56
It is reasonable for petitioner to assume that the promised first-class
hotels are equivalent to what are considered first-class hotels in Manila.
Even assuming arguendo that there is indeed a difference in classifications,
it cannot be gainsaid that a first-class hotel could at the very least provide
basic necessities and sanitary accommodations. We are accordingly not at
all impressed by private respondent's attempts to trivialize the complaints
thereon by petitioner and her companions.

Q The same is true with Grand Hotel Palatino which is not a first class
hotel?
A Yes, sir.
Q And Hotel Delta Florence is not first class hotel?
A That is how I got my itch, sir. Seven (7) days of itch.
Q How about Hotel Saint-Jacquez, Paris?
A It is far from the city. It is not first class hotel.
Q So with Hotel Le Prieure Du Coeur de Jesus neither a first class hotel?
A Yes, sir.
Q Hotel De Nevers is not a first class hotel?
A Yes, sir.
Q Hotel Roc Blanc Andorra is not a first class hotel?

52

In a last ditch effort to justify its choice of the hotels, private respondent
contends that it merely provided such "first class" hotels which are
commensurate to the tourists budget, or which were, under the given
circumstances, the "best for their money." It postulated that it could not
have offered better hostelry when the consideration paid for hotel
accommodations by the tour participants was only so much, 57 and the tour
price of $2,990.00 covers a European tour for 22 days inclusive of lower
room rates and meals. 58 this is implausible, self-serving and borders on
sophistry.
The fact that the tourists were to pay a supposedly lower amount, such
that private respondent allegedly retained hardly enough as reasonable

29
profit, 59 does not justify a substandard form of service in return. It was
private respondent, in the first place, which fixed the charges for the
package tour and determined the services that could be availed of
corresponding to such price. Hence, it cannot now be heard to complain
that it only made a putative marginal profit out of the transaction. if it
could not provide the tour participants with first-class lodgings on the basis
of the amount that they paid, it could and should have instead increased
the price to enable it to arrange for the promised first-class
accommodations.
On the foregoing considerations, respondent court erred in deleting the
award for moral and exemplary damages. Moral damages may be awarded
in breaches of contract where the obligor acted fraudulently or in bad faith.
60
From the facts earlier narrated, private respondent can be faulted with
fraud in the inducement, which is employed by a party to a contract in
securing the consent of the other.
This fraud or dolo which is present or employed at the time of birth or
perfection of a contract may either be dolo causante or dolo incidente. The
first, or causal fraud referred to in Article 1338, are those deceptions or
misrepresentations of a serious character employed by one party and
without which the other party would not have entered into the contract.
Dolo incidente, or incidental fraud which is referred to in Article 1344, are
those which are not serious in character and without which the other party
would still have entered into the contract. 61 Dolo causante determines or
is the essential cause of the consent, while dolo incidente refers only to
some particular or accident of the
obligations. 62 The effects of dolo causante are the nullity of the contract
and the indemnification of damages, 63 and dolo incidente also obliges the
person employing it to pay damages. 64
In either case, whether private respondent has committed dolo causante or
dolo incidente by making misrepresentations in its contracts with petitioner
and other members of the tour group, which deceptions became patent in
the light of after-events when, contrary to its representations, it employed
an inexperienced tour guide, housed the tourist group in substandard
hotels, and reneged on its promise of a European tour manager and the
visit to the leather factory, it is indubitably liable for damages to petitioner.
In the belief that an experienced tour escort and a European tour manager
would accompany them, with the concomitant reassuring and comforting
thought of having security and assistance readily at hand, petitioner was

induced to join the Volare 3 tourists, instead of travelling alone 65 She

likewise suffered serious anxiety and distress when the group was unable
to visit the leather factory and when she did not receive first-class
accommodations in their lodgings which were misrepresented as first-class
hotels. These, to our mind, justify the award for moral damages, which are
in the category of an award designed to compensate the claimant for that
injury which she had suffered, and not as a penalty on the wrongdoer, 66
we believe that an award of P100,000.00 is sufficient and reasonable.
When moral damages are awarded, especially for fraudulent conduct,
exemplary damages may also be decreed. Exemplary damages are
imposed by way of example or correction for the public good, in addition to
moral, temperate, liquidated or compensatory damages. According to the
code Commission, exemplary damages are required by public policy, for
wanton acts must be suppressed. 67 An award, therefore, of P50,000.00 is
called for to deter travel agencies from resorting to advertisements and
enticements with the intention of realizing considerable profit at the
expense of the public, without ensuring compliance with their express
commitments. While, under the present state of the law, extraordinary
diligence is not required in travel or tour contracts, such as that in the case
at bar, the travel agency acting as tour operator must nevertheless be held
to strict accounting for contracted services, considering the public interest
in tourism, whether in the local or in the international scene. Consequently,
we have to likewise reject the theory of private respondent that the
promise it made in the tour brochure may be regarded only as
"commendatory trade talk." 68
With regard to the honorarium for counsel as an item of damages, since we
are awarding moral and exemplary damages, 69 and considering the legal
importance of the instant litigation and the efforts of counsel evident from
the records of three levels of the judicial hierarchy, we favorably consider
the amount of P20,000.00 therefor.
WHEREFORE, premises considered, the decision of respondent Court of
Appeals is hereby SET ASIDE, and another one rendered, ordering private
respondent Kenstar Travel Corporation to pay petitioner Lydia L. Geraldez
the sums of P100,000.00 by way of moral damages, P50,000.00 as
exemplary damages, and P20,000.00 as and for attorney's fees, with costs
against private respondent. The award for nominal damages is hereby
deleted.
FACTS:

30
Petitioner Geraldez filed an action for damages by reason of contractual
breach against respondent Kenstar Travel Corp. Petitioner booked the
Volare 3 tour with Kenstar. The tour covered a 22-day tour of Europe for
$2,990.00 which she paid the total equivalent amount of P190,000.00
charged by private respondent for her and her sister, Dolores. At the tour,
petitioner claimed that what was alleged in the brochure was not what
they experienced. There was no European tour manager as stated in the
brochure, the hotels where they stayed in which were advertised as first
class were not, the UGC leather factory which was specifically included as
a highlight of the tour was not visited and The Filipino tour guide provided
by Kenstar was a first timer thus inexperienced. The Quezon City RTC
rendered a decision ordering respondent Kenstar to pay moral, nominal,
and exemplary damages totalling P1,000,000 and P50,000 attorneys fees.
On appeal, respondent Court of Appeals deleted the award for moral and
exemplary damages and reduced the nominal damages and attorneys
fees to P30,000 and P10,000 respectively.
ISSUES:
(1) Whether or not Kenstar acted in bad faith or with gross negligence in
discharging its obligations in the contract? (2)Whether or not the Court of
Appeals erred in removing the moral and exemplary damages
HELD:
(1) Yes, Kenstar acted in bad faith and with gross negligence in
discharging its obligation.

Kenstars choice of the tour guide is a manifest disregard of its specific

assurances to the tour group, and which deliberate omission is contrary to
the rules of good faith and fair play. Providing the Volare 3 group with an
inexperienced first timer as a tour guide, Kenstar manifested indifference
to the satisfaction, convenience and peace of mind to its clients. The
election of the tour guide was a deliberate and conscious choice on the
part of Kenstar in order to afford her on-the job-training making the tour
group her unknowing guinea pigs, furthermore the inability to visit the UGC
leather factory is reflective of the ineptness and neglect of the tour guide.
The failure of Kenstar to provide a European Tour Manager although it
specifically advertised and promised to do so is also a contractual breach.
Kenstar expressly stated in its advertisement that a European Tour
Manager would be present.

Kenstars contention that the European Tour Manager does not refer to a
natural person but a juridical personality does not hold because a
corporate entity could not possibly accompany the tour group. Lastly
Kenstar committed grave misrepresentation when it assured in its tour
package that the hotels provided would provide complete amenities and
would be conveniently located along the way for the daily itineraries.
Testimonies by petitioner and private respondent show that the hotels were
unsanitary and sometimes did not even provide towels and soap. Further
testimonies claim that the hotels were also located in locations far from the
city making it difficult to go to. The fact that Kenstar could only book them
in such hotels because of budget constraints is not the fault of the tour
group. Kenstar should not have promised such accommodations if they
couldnt afford it.
Kenstar should have increased the price to ensure accommodations. (2)
Yes, the Court of Appeals erred in removing the moral and exemplary
damages. Moral damages may be awarded in breaches of contract where
the obligor acted fraudulently or in bad faith. Kenstar can be faulted with
fraud in the inducement which is employed by a party in securing the
consent of the other. This fraud or dolo which is present or employed at the
time of birth or perfection of the contract may either be dolo causante or
dolo incidente. The first, or causal fraud referred to in Article 1338 are
those deceptions or misrepresentations of a serious character employed by
one party and without which the other party would not have entered into
the contract, Dolo incidente, or incidental fraud which is referred to in
Article 1344, are those which are not serious in character and without
which the other party would still have entered into the contract. In either
case, whether Kenstar has committed dolo causante or dolo incidente, it is
liable for damages both moral and exemplary.

31
FIRST DIVISION
G.R. No. 112443

whose heirs are private respondents Agelio Baclay, Elnora Baclay

and Carmen Jayme-Daclan;

January 25, 2002

TERESITA P. BORDALBA, petitioner,

vs.
COURT OF APPEALS, HEIRS OF NICANOR JAYME, namely, CANDIDA
FLORES, EMANNUEL JAYME, DINA JAYME DEJORAS, EVELIA JAYME,
and GESILA JAYME; AND HEIRS OF ASUNCION JAYME-BACLAY,
namely, ANGELO JAYME-BACLAY, CARMEN JAYME-DACLAN and
ELNORA JAYME BACLAY, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review under Rule 45 of the Rules of Court seeking to
set aside the October 20, 1992 Decision of the Court of Appeals 1 in CA-G.R.
CV No. 27419, which affirmed with modification the Decision 2 of the
Regional Trial Court of Mandaue, Branch 28, in Civil Case No. MAN-386.
The instant controversy stemmed from Lot No. 1242 (Lot No. 799-C) with
an area of 1,853 square meters and located at Barrio Looc, Mandaue City.
The subject lot is part of a parcel of land situated on the corner of Mabini
and Plaridel Streets in Mandaue City, and originally owned by the late
spouses Carmeno Jayme and Margarita Espina de Jayme. In 1947, an extrajudicial partition,3 written in the Spanish language was executed,
describing said parcel of land as
2. otra parcela de terreno urbano en el barrio de Look, Mandawe,
Cebu, que linda al N. con la Calle Mabini y propiodades de F. Jayme;
al E. linda con propiodades de Fernando Antigua; al S. linda con
propiodades de Lucas y Victoriano Jayme, y al O. linda con la Calle
Plaridel. La propiodad descrita esta avaluada, con todas sus
mejoras, en la cantidad de MIL Y CINCUENTA PESOS
------------------------------------------------ P1,050.00.4
and disposing, inter alia, the same parcel of land as follows:
1) 1/3 in favor of - (a) their grandchild Nicanor Jayme, the deceased
spouse of private respondent Candida Flores and the father of
private respondents Emmanuel, Dina, Evelia and Gesila, all
surnamed Jayme; and (b) their grandchild Asuncion Jayme-Baclay,

2) 1/3 to their daughter Elena Jayme Vda. de Perez, mother of

petitioner Teresita P. Bordalba; and
3) 1/3 to an unidentified party.
Built on the land adjudicated to the heirs of the spouses is Nicanor Jaymes
house, which his family occupied since 1945.
Sometime in July 1964, Elena Jayme Vda. de Perez, petitioners mother,
filed with the Regional Trial Court of Cebu, Branch IV, an amended
application for the registration5 of the lot described with the following
boundaries:
N - Fruelana Jayme & Road
S - Felicitas de Latonio
E - Agustin de Jayme
W - Porfirio Jayme, Lot No. 1 and Vivencio Abellana
Elena Jayme Vda. de Perez alleged that the lot sought to be registered was
originally a part of a land owned by her late parents, the spouses Carmeno
Jayme and Margarita Espina de Jayme; and that 1/3 of said land was
adjudicated to her in an extra-judicial partition. She further stated that a
portion of the lot for which title is applied for is occupied by Nicanor Jayme
with her permission.
Consequently, Nicanor Jayme and Asuncion Jayme-Baclay filed their
opposition6 contending that said application included the 1/3 portion
inherited by them in the 1947 extra-judicial partition. The case was,
however, dismissed for lack of interest of the parties.
Subsequently, petitioner filed with the Bureau of Lands of Cebu City an
application7 dated January 10, 1979, seeking the issuance of a Free Patent
over the same lot subject of the aborted application of her mother, Elena
Jayme, now known as Lot No. 1242 (799-C), described as follows:

32
North: Froilan Jayme and Road

Bordalba, spouses Genaro U. Cabahug, and Rita Capala, Rural Bank of

Mandaue and the Director of the Bureau of Lands.

East: Agustin Jayme

South: Alfredo Alivio and Spouses Hilario Gandecila
West: Hilario Gandecila Porferio Jayme and Heirs of Vevencio
Abellanosa8
On April 16, 1980, petitioner was successfully granted Free Patent No. (VIII) 11421 and Original Certificate of Title No. 0-571 (FP) over said lot. 9
Thereafter, petitioner caused the subdivision and titling of Lot No. 1242
(799-C), into 6 lots,10 as well as the disposition of two parcels thereof, thus:
1) Lot No. 1242-A with an area of 581 square meters covered by
Transfer Certificate of Title No. 22771 (FP) in the name of spouses
Genaro U. Cabahug and Rita Capala, to whom petitioner sold said
lot;
2) Lot No. 1242-B with an area of 420 square meters covered by
TCT No. 22772 in the name of Teresita P. Bordalba, and which the
latter mortgaged with the Rural Bank of Mandaue;
3) Lot No. 1242-C with an area of 210 square meters covered by
TCT 22773 in the name of Teresita P. Bordalba;
4) Lot No. 1242-D with an area of 210 square meters covered by
TCT 22774 in the name of Teresita Bordalba;
5) Lot No. 1242-E with an area of 216 square meters covered by
TCT 22775 in the name of Teresita P. Bordalba;
6) Lot No. 1242-F with an area of 216 square meters and covered
by TCT No. 22776 in the name of Teresita P. Bordalba.
Upon learning of the issuance in favor of petitioner of the aforesaid Free
Patent and Original Certificate of Title over Lot No. 1242, as well as the
conveyances made by petitioner involving the lot subject of the
controversy, private respondents filed with the Regional Trial Court of
Mandaue City, Branch 28, the instant complaint against petitioner Teresita

In the said complaint, private respondents prayed that Free Patent No. (VIII) 11421 and OCT No. 0-571 (FP), as well as TCT Nos. 22771-22776 be
declared void and ordered cancelled. Private respondents also prayed that
they be adjudged owners of Lot No. 1242 (799-C), and that spouses Genaro
V. Cabahug and Rita Capala as well as the Rural Bank of Mandaue be
declared buyers and mortgagee in bad faith, respectively. In addition, they
asked the court to award them actual, compensatory, and moral damages
plus attorneys fees in the amount of P20,000.00.
Petitioner, on the other hand, averred that Lot No. 1242 (799-C) was
acquired by her through purchase from her mother,11 who was in
possession of the lot in the concept of an owner since 1947. In her answer,
petitioner traced her mothers ownership of the lot partly from the 1947
deed of extra-judicial partition presented by private respondents, 12 and
claimed that Nicanor Jayme, and Candida Flores occupied a portion of Lot
No. 1242 (799-C) by mere tolerance of her mother. On cross-examination,
petitioner admitted that the properties of the late Carmeno Jayme and
Margarita Espina de Jayme were partitioned by their heirs in 1947, but
claimed that she was not aware of the existence of said Deed of Extrajudicial Partition. She, however, identified one of the signatures in the said
Deed to be the signature of her mother.13
On May 28, 1990, the trial court, finding that fraud was employed by
petitioner in obtaining Free Patent No. (VII-I) 11421 and OCT No. 0-571 (FP),
declared said patent and title void and ordered its cancellation. However, it
declared that spouses Genaro U. Cabahug and Rita Capala as well as the
Rural Bank of Mandaue are purchasers and mortgagee in good faith,
respectively; and consequently upheld as valid the sale of Lot No. 1242-A
covered by Transfer Certificate of Title No. 22771 (FP) to spouses Genaro U.
Cabahug and Rita Capala, and the mortgage of Lot No. 1242-B covered by
TCT No. 22772 in favor of the Rural Bank of Mandaue. The dispositive
portion of the decision reads:
WHEREFORE, foregoing premises considered, Decision is hereby
rendered in favor of the plaintiffs by:
1) declaring Free Patent No. (VII-I) 11421 as well as the Original
Certificate of Title No. 0-57 (FP) and all subsequent certificates of
title as a result of the subdivision of Lot No. 1242 except TCT NO.

33
22771 (FP) as null and void and ordering the Register of Deeds of
Mandaue City to cancel them;

Title issued and their declaration as the owners of Lot No. 1242 in
its entirety. The rest is AFFIRMED in toto.

2) declaring spouses defendants Genaro U. Cabahug and Rita

Capala as buyers in good faith and are the legal and rightful
owners of Lot No. 1242-A as described in TCT No. 22771 (FP);

SO ORDERED.15

3) declaring the Rural Bank of Mandaue, Inc. as mortgagee in good

faith and the mortgage lien in its favor be carried over to and be
annotated in the new certificate of title to be issued under the
names of the plaintiffs;
4) declaring the plaintiffs as the legal and rightful owners of Lot
1242 and ordering the issuance of the certificate of title in their
names;
5) dismissing the claims of the defendant spouses Cabahug and
Capala and the defendant Rural Bank of Mandaue, Inc. for lack of
merit;
6) ordering the defendant Teresita Bordalba to pay plaintiffs the
following amounts:
(a) P5,000.00 as actual and litigation expenses;
(b) P20,000.00 as attorneys fees, and,
7) ordering defendant Bordalba to pay the costs.
SO ORDERED.14
Both petitioner Teresita Bordalba and private respondents appealed to the
Court of Appeals, which affirmed with modification the decision of the trial
court. It ruled that since private respondents are entitled only to 1/3
portion of Lot No. 1242 (799-C), petitioner should be ordered to reconvey
1/3 of Lot No. 1242 (799-C) to private respondents. The decretal portion of
the respondent court's decision states:
WHEREFORE, the challenged decision is MODIFIED to order the
reconveyance of one-third of the subject land in favor of the
plaintiff-appellees in lieu of the cancellation of the Certificates of

Thus, petitioner filed the instant petition, assailing the decision of the Court
of Appeals. Petitioner contends that the testimonies given by the witnesses
for private respondents which touched on matters occurring prior to the
death of her mother should not have been admitted by the trial court, as
the same violated the dead mans statute. Likewise, petitioner questions
the right of private respondents to inherit from the late Nicanor Jayme and
Asuncion Jayme-Baclay, as well as the identity between the disputed lot
and the parcel of land adjudicated in the Deed of Extra-judicial Partition.
The contentions are without merit. It is doctrinal that findings of facts of
the Court of Appeals upholding those of the trial court are binding upon
this Court. While there are exceptions to this rule, petitioner has not
convinced us that this case falls under one of them. 16
The Court sees no reason to deviate from the findings of the trial court that
petitioner resorted to fraud and misrepresentation in obtaining a free
patent and title over the lot under scrutiny. The Court of Appeals correctly
pointed out that misrepresentation tainted petitioners application, insofar
as her declaration that the land applied for was not occupied or claimed by
any other person. Her declaration is belied by the extra-judicial partition
which she acknowledged, her mothers aborted attempt to have the lot
registered, private respondents predecessors-in-interests opposition
thereto, and by the occupancy of a portion of the said lot by Nicanor Jayme
and his family since 1945.
It is a settled rule that the Land Registration Act protects only holders of
title in good faith, and does not permit its provision to be used as a shield
for the commission of fraud, or as a means to enrich oneself at the
expense of others.17
As to the alleged violation of the dead mans statute, 18 suffice it to state
that said rule finds no application in the present case. The dead mans
statute does not operate to close the mouth of a witness as to any matter
of fact coming to his knowledge in any other way than through personal
dealings with the deceased person, or communication made by the
deceased to the witness.19

34
Since the claim of private respondents and the testimony of their witnesses
in the present case is based, inter alia, on the 1947 Deed of Extra-judicial
Partition and other documents, and not on dealings and communications
with the deceased, the questioned testimonies were properly admitted by
the trial court.
Likewise untenable is the claim of petitioner that private respondents are
not legal heirs of Nicanor Jayme and Asuncion Jayme-Baclay. Other than
their bare allegations to dispute their heirship, no hard evidence was
presented by them to substantiate their allegations. Besides, in order that
an heir may assert his right to the property of a deceased, no previous
judicial declaration of heirship is necessary.20

respondents as co-owners, and ordering the petitioner to reconvey 1/3 of

the lot in question to them.
Notwithstanding the foregoing, however, the Court is unable to determine
what part of Lot No. 1242 (799-C) is within the boundaries of the parcel of
land inherited in the 1947 Deed of Extra-judicial Partition by the
predecessors-in-interest of the parties herein. This is so because private
respondents did not show the extent of the said land mentioned in the
1947 Deed of Extra-judicial Partition in relation to Lot No. 1242 (799-C).
While they presented the boundaries of the parcel of land adjudicated in
the Deed, to wit:
North: Calle Mabini y propiodades de F. Jayme

Anent the issue of identity, the disparity in the boundaries of Lot No. 1242
(799-C) vis--vis the boundaries of the lot referred to in the 1947 Deed of
Extra-judicial Partition can be explained by the fact that Lot No. 1242 (799C) is only a portion of the entire parcel of land described in the Deed, a 1/3
pro-indiviso portion of which was adjudicated each to, first, petitioners
mother, second, to the predecessors-in-interest of private respondents,
and third, to an unidentified party. Logically therefore, their boundaries will
not be similar. At any rate, the records show that the parcel of land
adjudicated to the predecessors-in-interest of the parties herein was the lot
found on the corner of Plaridel and Mabini Streets in Looc, Mandaue City.
As admitted further by both parties, Lot No. 1242 (799-C) was part of the
land allotted to their predecessors-in-interest in the 1947 Deed of Extrajudicial Partition. Moreover, petitioners mother acknowledged in her
application for registration of Lot No. 1242 that the Deed of Extra-judicial
Partition was the source of her claim over the lot sought to be registered.
She further admitted that the lot now known as Lot No. 1242 (799-C) was
part of the parcel of land inherited by her and her co-heirs, to the extent of
1/3 share each. Under Section 31, Rule 130, of the Revised Rules on
Evidence, where one derives title to property from another, the act,
declaration, or omission of the latter, while holding the title, in relation to
the property, is evidence against the former.
Considering that Lot No.1242 (799-C) is part of the parcel of land over
which private respondents predecessors-in-interest is entitled to 1/3 proindiviso share, which was disregarded by petitioner when she secured a
Free Patent and Original Certificate of Title in her name, to the exclusion of
private respondents predecessors-in-interest, the trial court and the Court
of Appeals, therefore, did not err in upholding the right of private

East: Propiodades de Fernando Antigua

South: Propiodades de Lucas y Victoriano Jayme
West: Calle Plaridel
they did not, however, show where these boundaries are found in relation
to the boundaries of Lot No. 1242 (799-C). Absent a fixed boundary of the
parcel of land adjudicated in the Deed, which they claim Lot No. 1242 (799C) is a part of, the Court cannot determine the extent to which the lot now
known as Lot No. 1242 (799-C) is included. Admittedly, the north boundary
of Lot No. 1242 (799-C) (Property of Froilan Jaime and Mabini Street) is
similar to the north boundary of the land mentioned in the Deed. With only
one reference point, however, the south, east and west boundaries of Lot
No. 1242 (799-C) cannot be established with certainty to be within the
parcel of land described in the Deed of Extra-judicial Partition.
In Beo v. Court of Appeals,21 the Court held that in order that an action for
recovery of possession may prosper, it is indispensable that he who brings
the action must fully prove not only his ownership but also the identity of
the property claimed by describing the location, area and boundaries
thereof. So that when the record does not show that the land subject
matter of the action has been exactly determined, the action cannot
prosper, inasmuch as the plaintiff's ownership rights in the land claimed do
not appear satisfactorily and conclusively proven at the trial.

35
In the present case, while it is true that private respondents were not able
to show the extent of their 1/3 pro indiviso right over Lot No. 1242 (799-C),
they have nevertheless established their claim over the said lot. Hence, in
line with our ruling in the case of Laluan v. Malpaya,22 the prudent recourse
would be to remand the case to the lower court for a new trial.
WHEREFORE, in view of all the foregoing, the October 20, 1992 Decision
of the Court of Appeals in CA-G.R. CV No. 27419, and the May 28, 1990
Decision of the Regional Trial Court of Mandaue City, Branch 28, in Civil
Case No. MAN-386, insofar as it relates to the recognition of the 1/3 share
of private respondents over Lot No. 1242 (799-C) is AFFIRMED. The case
is remanded to the trial court in order to determine what part of Lot No.
1242 (799-C) is included in the parcel of land adjudicated in the 1947 Deed
of Extrajudicial Partition to the predecessors-in-interest of the parties
herein.
SO ORDERED.
FACTS:
A land known as Lot No. 1242 (Lot No. 799-C) with an area of 1,853 square
meters and located at Barrio Looc, Mandaue City, is the subject of the
controversy. This lot is part of a parcel of land situated on the corner of
Mabini and Plaridel Streets in Mandaue City, and originally owned by the
late spouses Carmeno Jayme and Margarita Espina de Jayme.In 1947, an
extra-judicial partition:
1)1/3 in favor of -(a) their grandchild Nicanor Jayme, the deceased spouse
of private respondent Candida Flores and the father of private respondents
Emmanuel, Dina, Evelia and Gesila, all surnamed Jayme; and (b) their
grandchild Asuncion Jayme-Baclay, whose heirs are private respondents
Angelo Baclay, Elnora Baclay and Carmen Jayme-Daclan;
2)1/3 to their daughter Elena Jayme Vda. de Perez, mother of petitioner
Teresita P. Bordalba; and
3)1/3 to an unidentified party.
Built on the land adjudicated to the heirs of the spouses is Nicanor Jaymes
house, which his family occupied since 1945.

Elena Jayme Vda. de Perez alleged that the lot sought to be registered was
originally a part of a land owned by her late parents, the spouses Carmeno
Jayme and Margarita Espina de Jayme; and that 1/3 of said land was
adjudicated to her in an extra-judicial partition.She further stated that a
portion of the lot for which title is applied for is occupied by Nicanor Jayme
with her permission.
Nicanor opposed stating that the land sought to be registered also covers
the land adjudicated to him by way of extra judicial partition.
Petitioner was successfully granted Free Patent No. (VII-I) 11421 and
Original Certificate of Title No. 0-571 (FP) over said lot.
Private respondents filed with the Regional Trial Court of Mandaue City,
Branch 28, the instant complaintagainst petitioner Teresita Bordalba,
spouses Genaro U. Cabahug, and Rita Capala, Rural Bank of Mandaue and
the Director of the Bureau of Lands.
Petitioner, on the other hand, averred that Lot No. 1242 (799-C) was
acquired by her through purchase from her mother who was in possession
since 1947.
the trial court, finding that fraud was employed by petitioner in obtaining
Free Patent No. (VII-I) 11421 and OCT No. 0-571 (FP), declared said patent
and title void and ordered its cancellation. However, it declared that
spouses Genaro U. Cabahug and Rita Capala as well as the Rural Bank of
Mandaue are purchasers and mortgagee in good faith, respectively; and
consequently upheld as valid the sale.
Appealed to CA. affirmed with modification the decision of the trial court.It
ruled that since private respondents are entitled only to 1/3 portion of Lot
No. 1242 (799-C), petitioner should be ordered to reconvey 1/3 of Lot No.
1242 (799-C) to private respondents.
RULING:
Likewise untenable is the claim of petitioner that private respondents are
not legal heirs of Nicanor Jayme and Asuncion Jayme-Baclay.Other than
their bare allegations todispute their heirship, no hard evidence was
presented by them to substantiate their allegations.Besides, in order that
an heir may assert his right to the property of a deceased, no previous
judicial declaration of heirship is necessary.

36
Considering that Lot No.1242 (799-C) is part of the parcel of land over
which private respondents predecessors-in-interest is entitled to 1/3 proindiviso share, which was disregarded by petitioner when she secured a
Free Patent and Original Certificate of Title in her name, to the exclusion of
private respondents predecessors-in-interest, the trial court and the Court
of Appeals, therefore, did not err in upholding the right of private
respondents as co-owners, and ordering the petitioner to reconvey 1/3 of
the lot in question to them.

37
EN BANC
G.R. No. L-44060 July 20, 1978
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BIENVENIDO PARAGSA, alias "BENBEN", defendant-appellant.
MAKASIAR, J.:
Bienvenido Paragsa, alias "Benben", appealed to the Court of Appeals the
decision of the Court of First Instance of Cebu (Judge Agapito Hontanosas,
presiding), the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered convicting the accused
Bienvenido Paragsa of the crime of Rape as charged in the
Information beyond reasonable doubt and applying the
Indeterminate Sentence Law, hereby sentences him to suffer the
indeterminate penalty of twelve (12) years of prision mayor as
minimum to seventeen (17) years, four (4) months and one (1) day
of reclusion temporal as the maximum and to indemnify the
complaining witness in the amount of P8,000.00 (People vs. Rogato
Rivera, 58, O.G. and People vs. Chan et al., CA No. 03545-GR,
August 11, 1967) with all legal accessories and to pay the costs.
Being a detention prisoner, he is entitled to the full credit of his
preventive imprisonment from the time of his confinement up to
the date of the promulgation of this judgment.
(pp. 10-19, rollo).
Because the penalty of reclusion perpetua was imposed by the Court of
Appeals on the accused, this case is now before US for review pursuant to
Section 34, Republic Act No. 296, as amended, otherwise known as the
Judiciary Act of 1948.
The evidence for the prosecution consists of the testimony of Mirasol
Magallanes, the alleged rape victim, her aunt-in-law, Mrs. Lita Parochel,
and Dr. Luis L. Gandiongco of the Bantayan Emergency Hospital, Bantayan,
Cebu, who examined the offended party and submitted Exhibit A
embodying his findings thereon,

Substantially, the records show that in the afternoon of July 13, 1971,
Mirasol, who was then a little over twelve and a half (12) years old
(Exhibit B, p. 7, rec.), was alone in her parents' house in Sitio Tabagac of
Barrio Bunacan, Municipality of Madridejos, Cebu, cooking hog feed. Her
parents were away at the time her father was in Cadiz, while her mother
was in Sagay, both in Negros Occidental (p. 16, t.s.n., Jan. 5, 1972) while
the rest of the family were with Mirasol's grandmother in Barrio Codia; also
in Madridejos, Cebu. Mirasol was a 6th grade student of the Bunacan
Elementary School (p. 6, t.s.n., Dec. 3, 1971). Upon instruction of her
mother, she did not go to school that afternoon so that she could look after
the pigs and cook their feed. Thus, she was alone in the ground floor of
their house cooking hog feed when the accused, Bienvenido Paragsa,
armed with a hunting knife, entered the house and closed the door after
him. Approaching from behind, he placed his left arm around Mirasol's
neck, encircled her abdomen with his right arm, at the same time pointing
the hunting knife with s right hand at her breast, and threatened her not to
shout otherwise she would be killed. Thereafter, the accused pushed her to
a bamboo bed nearby, rolled up her dress and, with his two hands,
removed her panties. The accused then placed his hunting knife on the bed
by Mirasol's side, opened the zipper of his pants while kneeling on the bed,
opened Mirasol's thighs, picked up the hunting knife again, placed himself
on top of Mirasol, inserted his erect penis into her sexual organ and then
made four push and pull movement until he ejaculated (pp. 7, 10-11, 12,
13, 14, t.s.n., Ibid). In the process, Mirasol's dress and panties were not
torn, since, because of fear, she allowed the accused to roll up her dress
and pull her panties without any resistance whatsoever. During the
intercourse, the accused was not holding the hunting knife. After the
accused had discharged, he ran to the storeroom of the house upstairs
because he heard Mrs. Lita Parochel, wife of the younger brother of
Mirasol's father, calling from outside the gate of the house, asking Mirasol
to open the gate. Mirasol did not answer because she was then in the act
of putting on her panties (p. 14, t.s.n., Ibid; p. 10, t.s.n., Jan. 5, 1972). After
she had put on her panties, she opened the gate and saw her aunt Lita,
who asked her what the accused did to her, but she did not answer
because she was afraid as the accused was still inside the house. She also
did not tell her aunt Lita that the accused had sexual intercourse with her
under threats and against her will. Her aunt Lita then walked away.
Thereafter, the accused reappeared in the room and told Mirasol that if she
would tell her aunt Lita what he did, he would kill her (pp. 13-14, t.s.n.,
Dec. 3, 1971). After the incident, Mirasol went to Barrio Codia later in the
afternoon of the same day and joined her brother and sister and

38
grandmother. She did not reveal to any of them what transpired between
her and the accused in Tabagac.
Mirasol's father returned from Cadiz, Negros Occidental that same day; but
Mirasol did not also reveal the incident to him because she was afraid her
father might punish her. Her mother returned home on July 16, 1971 from
Sagay, Negros Occidental; but Mirasol did not also tell her mother about
what happened to her on July 13 in Tabagac It was her aunt Lita who
revealed the matter to Mirasol's mother, who thereupon confronted her
daughter. Mirasol had to reveal the incident of July 13 to her mother only
when her mother asked her about it; because, according to her, she
wanted to take revenge on the accused (p. 15, Dec. 3, 1971). Three days
after her return from Sagay, Negros Occidental on July 19, 1971
Mirasol's mother brought her to the Bantayan Emergency Hospital in
Bantayan, Cebu, where she was examined by Dr. Luis L. Gandiongco, who
submitted his findings as follows:
Abrasion of inguinal region
Abrasion, left thigh, medial side

Mrs. Parochel met Mirasol's father at about 4:00 o'clock the same
afternoon but she did not talk to him about what she saw earlier in Tabagak
However, she revealed the incident to her husband (p. 17, t.s.n., Ibid).
When Mirasol's mother returned from Sagay, Negros Occidental, Mrs.
Parochel had a conversation with her regarding the person of the accused
and thereafter Mirasol's mother filed the corresponding complaint against
the accused (p. 18, t.s.n., Ibid).
Incidentally, in support of the complaint of Bernandina Magallanes, mother
of Mirasol, Mrs. Parochel executed an affidavit which she subscribed and
swore to before the municipal judge of Madridejos, Cebu, on July 30, 1971,
wherein she stated, among other things:
1. That at about 3:00 o'clock in the afternoon of July 13,
1971, I went to the house of Ruperto Magallanes, my
neighbor;
2. That when I entered their fence, I found out that one
Benben Paragsa ran from the bed where Mirasol
Magallanes was sitting on while putting on her panties;

INTERNAL FINDINGS:
1. Discharges sticky, milky in color, found at the anterior
fornix but negative for spermatozoa (Exh. A, p. 8, rec.; p. 2,
t.s.n., Nov. 16, 1971).
Mrs. Lita Parochel, the aunt-in-law of Mirasol, testified that she is the wife
of the younger brother of Mirasol's father. Her house is fifty (50) meters
away from the house of her brother-in-law, Ruperto Magallanes. In the
afternoon of July 13, 1971, she went to the house of her brother-in-law in
Tabagac Arriving there, she saw, through the gate which was made of split
bamboos, the accused running away when she shouted to Mirasol, who
was then in the act of putting on her panties, to open the gate (p. 10,
t.s.n., Jan. 15, 1972). Mirasol opened the gate after she had put on her
panties. Entering the house, Mrs. Parochel asked Mirasol what the accused
did to her, but Mirasol did not answer. So, she hid and from her hiding
place she saw the accused emerge from his hiding place and run away,
passing through the gate of the fence. Thereupon, she told Mirasol to go
home to barrio Codia because she was also going there (p. 15, t.s.n., Ibid).

3. That she, Mirasol Magallanes, upon my arrival, did not

say anything to me about the happening; and that I was
only thinking that something had happened (Exh. 1, p. 5,
rec.).
In his typewritten brief, the appellant enumerated and discussed five errors
as having been committed by the trial court. These errors may, however,
be boiled down to the issue of credibility.
Appellant admits having sexual intercourse with Mirasol, the complaining
witness, but he stoutly denied that he did so by employing force or
intimidation against Mirasol. He claims he and Mirasol were sweethearts;
that on the day of the incident, it was Mirasol who invited him to the
latter's house where they had sexual intercourse after kissing each other;
and that the intercourse they had that afternoon was, as a matter of fact,
their third sexual intercourse (pp. 2, 3, 5, 6, 8-9, t.s.n., March 21, 1972).

39
The foregoing testimony of the accused was substantially corroborated by
two witnesses for the defense, Mercado Batosbatosan and Eduardo Ducay
(pp. 5, 6-7, 12, 15-16, 17, 18, 19, 20, 25, t.s.n., Feb. 1, 1972).
A careful scrutiny of the record reveals that the prosecution's evidence is
weak, unsatisfactory and inconclusive to justify a conviction.
Certain circumstances negate the commission by the appellant of the
crime charged and point to the conclusion that the sexual intercourse
between the appellant and the complaining witness was voluntary. Force
and intimidation were not proven. Mirasol did not offer any resistance or
vocal protestation against the alleged sexual assault. She could have easily
made an outcry or resisted the appellant's advances without endangering
her life. But she did not. She was allegedly raped in her own home, not far
from her neighbors and during the daytime. If, indeed, she was raped
under the circumstances narrated by her, she could have revealed the
same the very moment she was confronted by her aunt Lita who asked her
what the accused did to her upon entering the house immediately after the
intercourse took place and when the accused ran from the bed to a
storeroom of the house to hide upon seeing and/or hearing the voice of her
aunt Lita. or, she could have grabbed the hunting knife by her side when
the copulation was going on, and with it she could have possibly prevented
the accused from consummating the sexual act. But she did not.
Another circumstance is that Mirasol did not reveal immediately to her
parents that she was raped. It was only after her mother arrived from
Sagay, Negros Occidental, three (3) days after the incident, and confronted
her about the rape incident that her mother learned through her aunt Lita
that she eventually revealed to her mother what the accused did to her in
the afternoon of July 13, 1971.
Still another circumstance is the fact that Mirasol did not bother at all to
rebut the testimony of the appellant and his witnesses to the effect that
the accused and Mirasol were actually sweethearts; and that they had had
two previous sexual communications before July 13, 1971, one of which
happened on June 29, 1971 in the house of the accused, where Mirasol and
the accused slept together in the evening of the same day after the
mother of the accused and Mirasol had returned from the town fiesta of
Bantayan, Cebu (p. 10, t.s.n., March 21, 1972).
The rule allowing silence of a person to be taken as an implied admission
of the truth of the statements uttered in his presence is applicable in

criminal cases. But before the silence of a party can be taken as an

admission of what is said, it must appear: (1) that he heard and understood
the statement; (2) that he was at liberty to interpose a denial; (3) that the
statement was in respect to some matter affecting his rights or in which he
was then interested, and calling, naturally, for an answer; (4) that the facts
were within his knowledge; and (5) that the fact admitted or the inference
to be drawn from his silence would be material to the issue (IV Francisco,
The Revised Rules of Court in the Philippines, 1973 ed., p. 316). These
requisites of admission by silence all obtain in the present case. Hence, the
silence of Mirasol on the facts asserted by the accused and his witnesses
may be safely construed as an admission of the truth of such assertion.
One more circumstance which engenders serious doubt on the truthfulness
of Mirasol is the testimony of Dr. Gandiongco that he did not notice any
laceration in the walls of Mirasol's vagina, thus
Q Doctor, you testified that according to your findings a foreign body might
have inserted the internal organ of the offended party?
A Yes, sir.
Q And as a matter of fact, in your examination there was no laceration?
A There was no laceration (p 5, t.s.n., November 16, 1971; Emphasis
supplied).
Considering Mirasol's tender age, if she had no previous sexual experience,
she must have been a virgin when she was allegedly raped by the accused.
Yet she did not state that she felt some pain as the accused tried to insert
his organ into her private part. Neither did she state that she was bleeding
during and after the alleged forced coition. Instead, she matter-of-factly
narrated that the accused made four push and pull movements after which
the latter ejaculated indicating that he had an easy time doing it.
If WE are to believe her story, certainly the doctor who examined her could
have noticed the lacerations even after the lapse of three (3) days from the
coition, if the intercourse on July 13, 1971 was in fact her first experience.
WE believe the absence of lacerations in the walls of Mirasol's vagina, as
testified to by Dr. Gandiongco, supra, eloquently confirms the truth of the
accused's assertion that before the incident in question, he and Mirasol
had two prior copulations.

40
And still another circumstance which casts serious doubt on the credibility
of the complaining witness and her aunt Lita is the matter of the hunting
knife. While it is true that on the witness stand these two witnesses
practically corroborated each other on this particular point, the matter of
the accused having a hunting knife with him on the day of the incident was
not, however, mentioned by Mrs. Parochel in her affidavit, Exhibit 1, which
she executed on July 30, 1971 five months before she testified in court.
Besides, at the trial, the prosecution did not bother to present such
"hunting knife".
A last circumstance which also engenders serious doubt on the veracity of
Mrs. Parochel, whose testimony the trial court summarized, runs thus:
... The victim did not answer the call of her aunt nor did she open
the barred door.
... She returned to the opened door and asked Mirasol what had
happened. Mirasol was very pale, trembling and in a state of
shock, did not answer her inquiries ...(p. 3, Decision; p. 64, rec.;
emphasis added).
The Solicitor General adopted the above factual summary made by the
trial court by stating that
Mirasol's aunt, Lita Parochel ... found her niece in a state of shock
(p. 4, Brief for the Plaintiff-Appellee; p. 49, rec.; Emphasis
supplied).
A painstaking scrutiny of the record, particularly the transcript of
stenographic notes, shows that contrary to the finding of the trial court,
Mirasol answered the call of her aunt and opened the gate of the house
after she had put on her panties (p. 14, t.s.n., Dec. 3, 1971); and that
Mirasol only seemed to be afraid, besides trembling (p. 23, t.s.n., 1972);
nowhere in the record is any evidence of Mirasol having been in a state of
shock.

2. Her aunt Lita would feel so alarmed and so concerned that she would
not lose any time to bring her to a doctor or to a hospital for medical
treatment or assistance;
3. Her aunt Lita would have confronted the accused who was still hiding in
the closet in a corner of the ground floor, or she would have gone to the
nearest police authority or barrio captain, who could have easily
apprehended the accused:
4. Her aunt could have sought the assistance of their barriomates or
neighbors; or
5. She could have brought Mirasol to her own house which was on about 50
meters away (pp. 7, 20, t.s.n., Jan. 5, 1972). But what did she do? She
abandoned Mirasol "because" she Mirasol had to feed her hogs (p. 24,
Idem).
That Mirasol was pale, afraid and trembling can only be attributed to the
fact that her aunt discovered her having sexual intercourse at so young an
age and that she feared that her aunt would report the same to her
parents.
And if Mrs. Parochel really believed that her niece Mirasol was raped by
appellant about 3 o'clock that afternoon of July 13, 1971, why did she not
report the outrage to Mirasol's father her husband's brother whom
she met about 4 o'clock that same afternoon, just one hour after the
alleged rape?
Mrs. Parochel's close relationship to her niece-daughter of her brother-inlaw vitiates her credibility.
Appellant cannot be legally convicted of simple seduction under Article 338
of the Revised Penal Code, for the same is not warranted by the wording of
the information, which does not alleged deceit, although appellant testified
that he promised to marry Mirasol if "something happens to her body."
Much less can simple seduction include rape.

If Mirasol was in fact in a state of shock

1. How come she was able to put on her panties and thereafter open the
gate of the house when she heard her aunt Lita calling from the outside?

WHEREFORE, APPELLANT BIENVENIDO PARAGSA, ALIAS "BENBEN", IS

HEREBY ACQUITTED, WITH COSTS de oficio AND HIS IMMEDIATE RELEASE
IS HEREBY ORDERED UNLESS HE IS BEING DETAINED ON OTHER CHARGES.

41
SO ORDERED.

42
FIRST DIVISION
G.R. No. 110290 January 25, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME "JIMMY" AGUSTIN, WILFREDO "SONNY QUIAO, MANUEL
"JUN" ABENOJA, JR., and FREDDIE "BOY" CARTEL, accused. JAIME
"JIMMY" AGUSTIN, accused-appellant.
DAVIDE, JR., J.:
In five separate informations filed on 22 May 1987 with the Regional Trial
Court (RTC), Branch 3, Baguio City, the accused were charged with murder
in Criminal Cases Nos. 4647-R and 4648-R, with frustrated murder in
Criminal Case No. 4649-R, and with attempted murder in Criminal Cases
Nos. 4650-R and 4651-R. The crimes were allegedly committed on 6
September 1986 in Baguio City and resulted in the deaths of Dr. Napoleon
Bayquen and Anna Theresa Francisco and the wounding of Anthony
Bayquen, Dominic Bayquen, and Danny Ancheta.
The informations in the murder cases charged that the accused acted in
conspiracy and alleged the presence of the qualifying circumstance of
treachery and the ordinary aggravating circumstances of evident
premeditation and price. 1
Only the appellant and Wilfredo Quiao were arrested. However, before
Quiao could be arraigned, he escaped on 12 July 1987 while under the
custody of the Philippine Constabulary/PNP Regional Command I at Camp
Dangwa, La Trinidad, Benguet. 2 The cases, which were consolidated and
jointly tried, proceeded only against the appellant.
After the appellant pleaded not guilty at his arraignment on 4 September
1987, trial on the merits was held on various dates from 11 May 1988 until
10 January 1990.
On 30 May 1990, the trial court promulgated its decision 3 in the
consolidated cases acquitting the appellant in Criminal Case No. 4649-R
(frustrated murder) and Criminal Cases Nos. 4650-R and 4651-R
(attempted murder) for insufficiency of evidence but convicting him in the
two murder cases, Criminal Cases Nos. 4647-R and 4648-R, with treachery

as the qualifying circumstance. 4 It also ruled that the aggravating

circumstances of evident premeditation and price had been duly
established. It then sentenced the appellant as follows:
Upon these premises, the accused Jaime Agustin is found GUILTY of
two (2) counts of murder, the prosecution having proven his guilt
beyond reasonable doubt. In each of the criminal cases aforesaid,
he should be sentenced to the maximum penalty of Death, there
being two aggravating circumstances. However, since the death
penalty is not imposable at this time, the accused is sentenced to
Reclusion Perpetua. He is further ordered to indemnify the heirs of
the victims; Anna Theresa Francisco the sum of sixty Three
Thousand Pesos (P63,000.00) as actual damages (Exhibits "F," "I"
and "G"); and Dr. Napoleon Bayquen, the sum of Thirty Thousand
Pesos (P30,000.00). With costs against the accused, Jaime Agustin.
SO ORDERED. 5
The version of the prosecution is based on the testimonies of (1) Isidoro
Magpantay, a member of the Baguio City Police Force, who identified the
initial report (Exhibit "A"); (2) Christie Napeas, a stenographic reporter in
the Office of the City Fiscal of Baguio City, who took down the stenographic
notes of City Fiscal Erdolfo Balajadia's investigations of accused Wilfredo
Quiao (Exhibit "D") on 30 January 1987 and of the appellant on 10
February 1987, and who identified her stenographic notes containing the
statement of the appellant (Exhibit "B") and the transcript of said
stenographic notes (Exhibit "C"); (3) Dominic Bayquen, the victim in
Criminal Case No. 4650-R, who testified on how they were shot; (5) Eulogio
Francisco, the father of Anna Theresa Francisco, who identified her death
certificate (Exhibit "I") and testified on the list of expenses (Exhibit "G"); (6)
Rogelio Mumar, a supervising ballistics expert, who declared that the
fourteen shell recovered from the scene of the crime were not fired from
any of the three armalite rifles submitted to him; (7) Atty. Reynaldo
Cajucom, who testified that he was the lawyer who assisted the appellant
and accused Wilfredo Quiao while they were being investigated by City
Fiscal Balajadia; and (8) Lilian San Luis Bayquen, wife of Dr. Napoleon
Bayquen and mother of Dominic Bayquen, who testified on what she did
after Dominic informed her by telephone about the shooting incident.
The evidence for the prosecution established the following facts. At past
7:30 p.m. of 6 September 1986 in Baguio City, Dr. Napoleon Bayquen, a
dentist, together with his son, Anthony; Anthony's girlfriend, Anna Theresa

43
Francisco; his daughter, Dominic; and Danny Ancheta, a family friend, were
on their way aboard their Brasilia to the doctor's residence at Trancoville at
21-D Malvar Street, Baguio City, from his driving the car. While they were
cruising along Malvar Street and nearing the Baptist church, a man came
out from the right side of a car parked about two meters to the church. The
man approached the Brasilia, aimed his armalite rifle through its window,
and fired at the passengers. The Brasilia swerved and hit a fence. The
gunman immediately returned to the parked car which then sped away.
All those in the car were hit and Dr. Bayquen and Anna Theresa died on the
spot. Dr. Bayquen's head was blown off. Dominic was bale to get out of the
Brasilia to run to the Alabanza store where she telephoned her mother and
told her what had happened. Later, she and her mother brought her father
and Anthony to the hospital. 6 Danny Ancheta went home and was then
brought to the Notre Dame Hospital for treatment. 7 Anna Theresa
Francisco was brought to the funeral parlor. 8 The police later arrived at the
crime scene and conducted an investigation. they recovered some empty
shells of an armalite rifle. 9
On 30 January 1987, accused Wilfredo "Sonny" Quiao, an alleged former
military agent or "asset" who had been picked up in La Union by the police
authorities, confessed during the investigation conducted by Baguio City
Fiscal Erdolfo Balajadia in his office that he was the triggerman in the fatal
shooting of Dr. Bayquen and Anna Theresa Francisco. He implicated Manuel
"Jun" Abenoja, Jr., allegedly a fellow military agent and the "bagman" who
engaged him to kill Dr. Bayquen for a fee, Freddie "Boy" Cartel, who
provided the armalite, and a certain "Jimmy." During the investigation,
Wilfredo Quiao was assisted by Atty. Reynaldo Cajucom, a representative
of the Integrated bar of the Philippines (IBP). Ms. Christie Napeas, a
stenographic notes of the proceedings during the investigation. 10
Thereafter, she transcribed the notes and the transcription became the
sworn statement of Wilfredo Quiao which he signed, with the assistance
of Atty. Cajucom, and swore to before City Fiscal Balajadia. 11
In the morning of 10 February 1987, "Jimmy," who turned out to be
appellant Jaime Agustin, was picked up in Sto. Tomas, Pangasinan, by
military personnel and brought to Baguio city. At 4:00 p.m. of that date, he
was taken to the office of City Fiscal Erdolfo Balajadia where he was
investigated in connection with the crime. Atty. Reynaldo Cajucom assisted
the appellant during the investigation. Ms. Christie Napeas took down
stenographic notes of the proceedings during the investigation. The
stenographic notes consisted of 22 pages (Exhibit "B"), each of which was

signed afterwards by the appellant and Atty. Cajucom. Ms. Napeas

subsequently transcribed these notes which the prosecution marked as
Exhibit "C." The appellant narrated therein his knowledge of the shooting
of Dr. Bayquen and revealed the identities of his cohorts in the crime. In a
confrontation two days later, he identified Quiao as "Sony," the
triggerman.
The defense presented the appellant and his wife, Elizabeth Agustin. The
appellant, who is a farmer and whose highest educational attainment was
grad four, impugned the validity of his extrajudicial statement. he alleged
that in the morning of 10 February 1987, he went to Carmen, Pangasinan,
to buy some fertilizer and upon his return he was met by two armed men
who took him to their car where two other companions, armed with
armalites, were waiting. They then brought him out of Pangasinan. He later
learned that they were on their way to Baguio City.
Inside the car, he was asked if he knew Boy and Jun, and he answered that
he did not. Along Kennon Road, he was made to stoop down at the back
seat whenever they would reach a toll booth, and then brought out three
times near the ravines and made to kneel at gunpoint in order to force him
to admit his involvement in the shooting, which he finally did out of fear.
Then he was brought to the Office of the City Fiscal of Baguio City.
While he was giving his statement at the fical's office, the armed men
stayed with him and their presence deterred him from telling the
investigating fiscal that he was being threatened. He further declared that
although he was given a lawyer, Atty. Reynaldo Cajucom, to assist him, he,
nevertheless, asked for his uncle who is a lawyer, Atty. Oliver Tabin, and
that Atty. Cajucom interviewed him from only two minutes in English and
Tagalog but not in Ilocano, the dialect he understands. Then later, at Camp
Dangwa to where he was taken, he told his wife to get in touch and talk
with Atty. Tabin. Finally, he asserted that he was promised by his captors
that he would be discharged as a state witness if he cooperates, but the
plan did not push through because his co-accused, Quiao, escaped. 12
Elizabeth Agustin corroborated her husband's story that he went to Carmen
in the morning of 10 February 1987 to buy some fertilizer and that he
failed to return. Her efforts to locate him proved futile until days later when
she finally learned that he was detained at Camp Dangwa. 13
The trial court admitted the appellant's extrajudicial statement and gave
scant consideration to his claim of force, intimidation, and other

44
irregularities because of the following reasons: (a) the presence of material
improbabilities in his tale of when and how he was allegedly taken at
gunpoint from his hometown in Pangasinan; (b) it was improbable that he
was made to kneel thrice at gunpoint along Kennon Road considering the
vehicles which were passing along that road; (c) it was unbelievable that
when he was in the Fiscal's Office he asked for his uncle, Atty. Tabin if he
could not go home for a period of one month; (d) no less than the city
Fiscal of Baguio City interrogated him and yet he did not tell the fiscal that
he was being forced to give a statement; (e) the fiscal even provided him
with a lawyer who conferred with him and apprised him of his rights; (f) he
signed each and every page of the stenographic notes of his statement
and this was witnessed by no less than the City Fiscal of Baguio and the
lawyer who assisted him; and (g) he disclosed in his statement that he
voluntarily gave it because of his ill feeling against his co-accused who did
not give him any money.
The trial court then concluded that "[t]here was conspiracy and the
accused was a direct participant in the crime," and that while he tried to
minimize his culpability, his "extrajudicial confession" shows that "he was
in on the plan," and even "expected to be paid, to be rewarded
monetarily"; and that he "decided to give a statement only when he was
not given the money." Since the proof of corpus delicti required in Section
3, Rule 133 of the Rules of Court was established by the prosecution's
evidence, it found his conviction for murder inevitable.
The appellant filed a notice of appeal. In this brief, he imputes upon the
trial court the commission of this lone error:
THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN
CONSIDERING ACCUSED-APPELLANT'S EXTRAJUDICIAL
CONFESSION AS ADMISSIBLE EVIDENCE AGAINST HIM. 14
The appellant insists that his extrajudicial confession was taken in violation
of his rights under Section 11, Article III of the constitution. He argues that
the lawyer who assisted him, Atty. Reynaldo Cajucom, was not of his own
choice but was foisted upon him by the city Fiscal. Worse, the said lawyer
is a law partner of the private prosecutor, Atty. Arthur Galace, and
conferred with him in English and Tagalog although he understood only
Ilocano. Moreover, when Atty. Cajucom briefly conferred with him and when
the city Fiscal interrogated him, his military escorts were present.

He stresses that the lawyer "who assists the suspect under custodial
interrogation should be of the latter's choice, not one foisted on him by the
police investigator or other parties," 15 and that where there are serious
doubts on the voluntariness of the extrajudicial confession, the doubts
must be resolved in favor of the accused. 16 He then concludes that his
extrajudicial confession is inadmissible and his conviction cannot stand,
there being no other evidence linking him to the crimes charged.
In its brief, 17 the appellee, reiterating the reasons of the trial court in
upholding the validity of the confession, prays for the affirmance of the
appealed decision.
After a careful study of the records of Criminal Cases Nos. 4647-R and
4648-R and a painstaking evaluation of the evidence, we find this appeal to
be impressed with merit. Indeed, the extrajudicial admission not
extrajudicial confession of the appellant, which is the only evidence of
the prosecution linking him to the commission of the crime charged, is
wholly inadmissible because it was taken in violation of Section 12, Article
III of the Constitution. We also see in these cases a blatant disregard of the
appellant's right under Section 2 of Article III when he was unlawfully
arrested.
Before we go any further, it should be pointed out that, contrary to the
pronouncement of the trial court and the characterization given by the
appellant himself, the assailed extrajudicial statement is not extrajudicial
confession. It is only an extrajudicial admission. We take this opportunity to
once more distinguish one from the other. Sections 26 and 33, rule 30 of
the Rules of
Court 18 clearly show such a distinction.
In a confession, there is an acknowledgment of guilt of the accused or of
the criminal intent to commit the offense with which he is charged. 19
Wharton 20 defines a confession as follows:
A confession is an acknowledgment in express terms, by a party in
a criminal case, of his guilt of the crime charged, while an
admission is a statement by the accused, direct or implied, of facts
pertinent to the issue, and tending, in connection with proof of
other facts, to prove his guilt. In other words, and admission is
something less than a confession, and is but an acknowledgment
of some fact or circumstance which in itself is insufficient to

45
authorize a conviction, and which tends only to establish the
ultimate fact of guilt.
We have examined the assailed extrajudicial statement of the appellant,
and we are satisfied that nothing therein indicates that he expressly
acknowledged his guilt; he merely admitted some facts or circumstances
which in themselves are insufficient to authorize a conviction and which
can only tend to establish the ultimate fact of guilt. Nevertheless, when
what is involved is the issue of admissibly in evidence under Section 12,
Article III of the Constitution, the distinction is irrelevant because
Paragraph 3 thereof expressly refers to both confession and admission.
Thus:
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
The first two paragraphs of Section 12 read:
Sec. 12. (1) Any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms
of detention are prohibited.
These first and second paragraphs are taken from Section 20, Article IV
(Bill of Rights) of the 1973 Constitution which read:
Sec. 20. No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of an
offense shall have the right to remain silent and to counsel, and to
be informed of such right. No force, violence, threat, intimidation,
or any other means which vitiates the free will shall be used
against him. Any confession obtained in violation of this section
shall be inadmissible in evidence.

The first two paragraphs of Section 12, Article III of the present
Constitution have broadened the aforesaid Section 20 in these respects:
(1) the right to counsel means not just any counsel, but a "competent and
independent counsel, preferably of his own choice"; (2) the right to remain
silent and to counsel can only be waived in writing and in the presence of
counsel; and (3) the rule on inadmissibility expressly includes admissions,
not just confessions.
In Morales vs. Enrile, 21 this Court, applying Section 20, Article IV of the
1973 Constitution, laid down the duties of an investigator during custodial
investigation and ruled that the waiver of the right to counsel would not be
valid unless made with the assistance of counsel:
At the time a person is arrested, it shall be the duty of the arresting
officer to inform him of the reason for the arrest and he must be
shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any
statement he might make could be used against him. The person
arrested shall have the right to communicate with his lawyer, a
relative, or anyone he chooses by the most expedient means by
telephone if possible or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted unless
it be in the presence of counsel engaged by the person arrested,
by any person on his behalf, or appointed by the court upon
petition either of the detainee himself or by anyone on his behalf.
The right to counsel may be waived but the waiver shall not be
valid unless made with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid down, whether
exculpatory of inculpatory, in whole or in part, shall be inadmissible
in evidence.
We reiterated the above ruling in People vs. Galit, 22 People vs. Lumayok,
People vs. Albofera, 24 People vs. Marquez, 25 People vs. Penillos, 26 and
People vs. Basay, 27 among other cases.

23

The right to be informed of the right to remain silent and to counsel

contemplates "the transmission of meaningful information rather than just
the ceremonial and perfunctory recitation of an abstract constitutional
principle." 28 It is not enough for the investigator to merely repeat to the
person under investigation the provisions of Section 20, Article IV of the
1973 Constitution or Section 12, Article III of the present Constitution; the

46
former must also explain the effects of such provision in practical terms,
e.g., what the person under investigation may or may not do, and in
language the subject fairly understands. The right to be informed carries
with it a correlative obligation on the part of the investigator to explain,
and contemplates effective communication which results in the subject
understanding what is conveyed. Since it is comprehension that is sought
to be attained, the degree of explanation required will necessarily vary and
depend on the education, intelligence, and other relevant personal
circumstances of the person undergoing the investigation.
In further ensuring the right to counsel, it is not enough that the subject is
informed of such right; he should also be asked if he wants to avail of the
same and should be told that he can ask for counsel if he so desires or that
one will be provided him at his request. If he decides not to retain counsel
of his choice or avail of one to be provided for him and, therefore, chooses
to waive his right to counsel, such waiver, to be valid and effective, must
be made with the assistance of counsel. That counsel must be a lawyer. 29
The waiver of the right to counsel must be voluntary, knowing, and
intelligent. 30 Consequently, even if the confession of an accused speaks
the truth, if it was made without the assistance off counsel, it is
inadmissible in evidence regardless of the absence of coercion or even if it
had been voluntarily given. 31
The extrajudicial admission of the appellant, 32 contained in twenty-two
pages of yellow pad, does, indeed, appear to be signed by him and Atty.
Reynaldo Cajucom. what we find in these yellow pads are stenographic
notes. these were transcribed by the stenographer who took down the
stenographic notes, but for reasons not explained in the records, the
transcript of the notes (Exhibit "C"), which consists of twelve pages, 33 was
not signed by the appellant since it does not indicate any jurat. On the
other hand, the same stenographic reporter, who took down the
stenographic notes when accused Wilfredo Quiao was being investigated
by City Fiscal Balajadia, transcribed the notes, and the transcription 34 was
subscribed and sworn to by the accused before City Fiscal Balajadia and
also signed by Atty. Cajucom, who represented the accused in the
investigation.
Since we cannot even reads or decipher the stenographic notes in the
yellow pads, we cannot expect the appellant, who is a farmer and who
reached only the fourth grade, to read or decipher its contents. We have to
rely solely on the transcript and presume its accuracy. A perusal of the

transcript convinces us that the appellant was not given a fair deal and
was deprived of his rights under Section 12(1), Article III of the
Constitution. Firstly, he was not fully and properly informed of his rights.
The transcript (Exhibit "C") shows the following preliminary questions of
the City Fiscal and the answers of the appellant:
01. QUESTION Mr. Jaime Agustin, I am informing you that
you are under investigation in connection
with the death of Dr. Nap Bayquen of which
you are one of the principal suspects. I am
informing you of your constitutional rights
before you give any statement. First, you
have the right to remain silent meaning, you
may give a statement or you may not give
any statement. If you will not give a
statement, you will not be forced to do so,
do you understand this right?
ANSWER I understand, sir.
02. Q If you will give a statement, you have the
right to be assisted by a lawyer of your own
choice, if you cannot afford to secure the
services of a lawyer the government will
provide a lawyer for you, do you understand
this right?
A I understand, sir.
03. Q Now, do you want to be assisted by a
lawyer?
A Yes, sir.
04. Q I am now informing you that a lawyer in the
person of Atty. Reynaldo Cajucom is now
present in this investigation room, do you
wish to avail of his assistance in connection
with this investigation?
A I want, sir.

47
05. Q I am also informing you that whatever you
say in this investigation can be used as
evidence in your favor and it can also be
used as evidence against you in any criminal
or civil case, do you understand that?
A Yes, sir, I understand.
06. Q After informing you of your constitutional
rights, are you now willing to give a
statement?
A Yes, sir, I agree.
Investigator Atty. Reynaldo Cajucom, the witness or
respondent Jaime Agustin has chosen you to
give him assistance in this investigation, are
you willing to assist him?
Answer I am willing, fiscal, to assist the witness.
Investigator Have you appraised [sic] him of his
constitutional rights?
Answer Yes, fiscal.
Investigator Do you know after examining him whether
or not he is giving a free and voluntary
statement of his own volition without any
intimidation or force exerted on him?
A As stated by him, fiscal, he is willing to give
a free and voluntary statement in relation to
what really happened.
It is at once observed that the appellant was not explicitly told of his right
to have a competent and independent counsel of his choice, specifically
asked if he had in mind any such counsel and, if so, whether he could
afford to hire his services, and, if he could not, whether he would agree to
be assisted by one to be provided for him. He was not categorically
informed that he could waive his rights to remain silent and to counsel and

that this waiver must be in writing and in the presence of his counsel. He
had, in fact, waived his right to remain silent by agreeing to be
investigated. Yet, no written waiver of such right appears in the transcript
and no other independent evidence was offered to prove its existence.
Secondly, Atty. Cajucom can hardly be said to have been voluntarily and
intelligently "accepted" by the appellant as his counsel to assist him in the
investigation. Atty. Cajucom's presence in the Office of the City fiscal at the
time the appellant was brought there for investigation is unclear to us. At
least two possibilities may explain it: it was a mere coincidence in the
sense that he happened to be attending to some professional matter, or he
was earlier called by the City Fiscal for the purpose of giving free legal aid
to the appellant. These possibilities are not remote but whether it was one
or the other, it is clear to us that Atty. Cajucom was in fact foisted upon the
appellant, for as shown in the above-quoted portion of Exhibit "C," the city
fiscal immediately suggested the availability of Atty. Cajucom without first
distinctly asking the appellant if he had a counsel of his own choice and if
he had one, whether he could hire such counsel; and if he could not,
whether he would simply exercise his right to remain silent and to counsel.
In short, after the appellant said that he wanted to be assisted by counsel,
the City fiscal, through suggestive language, immediately informed him
that Atty. Cajucom was ready to assist him.
While it is true that in custodial investigations the party to be investigated
has the final choice of counsel and may reject the counsel chosen for him
by the investigator and ask for another one, 35 the circumstances obtaining
in the custodial interrogation of the appellant left him no freedom to
intelligently and freely do so. For as earlier stated, he was not even asked if
he had a lawyer of his own choice and whether he could afford to hire such
lawyer; on the other hand, the city Fiscal clearly suggested the availability
of Atty. Cajucom. then too, present at that time were Capt. Antonio Ayat
and Sgt. Roberto Rambac, military officers of RUC I, who brought him to
the City Fiscal's Office for investigation in the afternoon of the day when he
was unlawfully arrested in Sto. Tomas, Pangasinan. Along Kennon road, on
the way to Baguio City, he was coerced and threatened with death if he
would not admit knowing "Jun" and "Sonny" and hi participation in the
crime. This testimony was unrebutted by the prosecution. The presence of
the military officers and the continuing fear that if he did not cooperate,
something would happen to him, was like a Damocles sword which vitiated
his free will.

48
Why it was the City Fiscal who had to conduct the custodial investigation is
beyond us. Nothing in the records shows that at that time the criminal
cases against the culprits had already been filed with the City Fiscal's
Office for preliminary investigation and had, therefore, ceased to be a
police matter. If they had been so filed, then the City Fiscal should have
followed the usual course of procedure in preliminary investigations. It
appears, however, from the informations in Criminal Cases Nos. 4647-R
and 46648-R that it was Assistant City Fiscal Octavio M. Banta who
conducted the preliminary investigation and who prepared, signed, and
certified the informations. city Fiscal Balajadia merely approved them and
administered the jurat in the certification. the conclusion then is inevitable
that he did not conduct the preliminary investigation.
Even assuming for the sake of argument that the appellant voluntarily
agreed to be assisted by Atty. Cajucom, we doubt it very much if he was an
independent counsel. While we wish to give him the benefit of the doubt
because he is an officer of the court upon whose shoulders lies the
responsibility to see to it that protection be accorded the appellant and
that no injustice be committed to him, 36 and, moreover, he generally has
in his favor the presumption of regularity in the performance of his duties,
37
there are special circumstances in these cases which convince us that he
was unable to assist the appellant in a satisfactory manner. For one, he
admitted on cross-examination that at that time, and even until the time
he took the witness stand, he was an associate of the private prosecutor,
Atty. Arthur Galace, in these and the companion cases. Thus:
Q Mr. Witness, at the time you assisted the accused you belonged to the
office of Atty. Galace, you were an associate at the time when you assisted
the accused?

ATTY. TABIN:
So in other words when you appraised [sic] him of his constitutional rights
using English Language and Tagalog Dialect you did not have any Ilocano
dialect Interpreter. . . .
WITNESS:
As far as I can remember, I explained it in Tagalog and English.

39

And when asked whether he was sure if the appellant understood him, Atty.
Cajucom merely answered:
A At least I put everything as far as I could give to him to appraise [sic] him
of his constitutional rights. 40
Then too, even if he were fully understood by the appellant, we are not
satisfied that his explanations were adequate. On direct examination, he
gave the following answers:
Q Did you explain the constitutional rights of the accused to
caution him of the consequences of his statement?
A I explained to him that he has the right to remain silent, to
confront in person the witnesses against him and that he has
the right to choose a counsel to assist him in the hearing of
the case which was being investigated then.

A I was represented [sic] then as IBP Legal Aid.

Q And what was his reply regarding the consequences of this

statement?

Q The question is not answered, we are only requesting him if he was an

associate of Atty. Galace up to the present?

A He told me that he is willing to give a truthful statement and

in order to shed light. 41

A Yes.

It appears to us that Atty. Cajucom did not actually impress upon the
appellant that he was one of the accused; rather, Atty. Cajucom made the
appellant believe that he was only a witness. Thus:

38

Then we have misgivings on whether Atty. Cajucom was in fact understood

by the appellant when the former informed the appellant of his
constitutional rights in English and Tagalog considering that the appellant,
a fourth grader and a farmer, could only understand Ilocano. Thus:

Q [by the prosecutor]

49
But, nevertheless, you gave the precautionary measure
entitled to any witness?

Sec. 5. Arrest without warrant when lawful. A peace officer or a

private person may, without a warrant, arrest a person:

A Yes, sir.

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense;

Q Why do you say that it was given voluntarily?

A Before presenting him to the investigation we were given
time to talk personally without any other people and that
was the time that I explained to him all his rights and
consequences pertaining to him as witness to this case. 42
On cross-examination, Atty. Cajucom also declared:
ATTY. TABIN:
That is why I am requesting him how he explained in that language, Your
Honor.
WITNESS:
I told him that this is a grave case which he would be giving some
narrations as a witness and his involvement would mean the most grievous
offense and if found guilty will bring him for some years in jail and I told
him that I could help him if he will be presenting the truth and narrate is
the truth. This is in combination, English and Tagalog, and most of the
time, I made it in Tagalog. 43
Moreover, considering that the appellant is familiar only with Ilocano, the
Court has serious doubts about his ability to understand Atty. Cajucom's
explanation of his constitutional rights since Atty. Cajucom did so in English
and Tagalog.
Finally, Atty. Cajucom knew, as admitted by him on cross-examination, that
the appellant was picked up on 10 February 1987 by military men in
Pangasinan without a warrant for his arrest. 44 Since the crimes with which
the appellant was charged were allegedly committed on 6 September 1986
or more than five months earlier, no arrest without a warrant could have
been legally and validly effected. a warrantless arrest should comply with
the conditions prescribed in Section 5, rule 113 of the Rules of Court. Said
section provides:

(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
None of these exceptional circumstances were present at the time the
appellant was arrested on 10 February 1987. The prosecution did not even
insinuate that the crimes were committed in the presence of the arresting
officers (for otherwise they could have arrested the appellant on 6
September 1986 yet) or that the appellant was a prisoner who had
escaped from his place of detention; or that the crimes had just been
committed for they were in fact committed more than five months earlier.
Atty. Cajucom knew or ought to have known that the arrest was unlawful. If
he were then truly moved by his duty to fully assist the appellant, he
should have forthwith taken the appropriate measures for the immediate
release of the appellant instead of allowing the City Fiscal to investigate
him. Needless to say, the conduct of Atty. Cajucom under the
circumstances only strengthen our belief that the appellant had all the
cards stacked against him.
Thus, we do not hesitate to declare the appellant's extrajudicial statement
inadmissible in evidence because it was obtained in violation of Section 12
(1), Article III of the Constitution. since it is the only evidence which links
him to the crimes of which he was convicted, he must then be acquitted.
His acquittal must not write finis to these murder cases. These crimes must
be solved and the triggerman and the mastermind apprehended. We see in
these cases the failure of the Government to exert the necessary efforts to
bring the guilty parties to the bar of justice. Until now, the accused, who
were implicated by the triggerman as having ordered for a price the

50
murder of Dr. Bayquen, remain at large and the records do not show any
diligent effort to effect their arrest. The triggerman escaped while in the
custody of the PC/INP at Camp Dangwa. The City Prosecutor's Office of
Baguio City should then use all the resources at its command, in
coordination with the law-enforcement agencies of the Government, such
as the National Bureau of Investigation and the Philippine National Police,
to immediately arrest the other accused.
WHEREFORE, judgment is hereby rendered REVERSING the challenged
judgment of the Regional Trial Court, branch 3, Baguio City, in Criminal
Case No. 4647-R and Criminal Case No. 4648-R, and ACQUITTING appellant
JAIME "JIMMY" AGUSTIN. His immediate release from confinement is hereby
ORDERED unless for some other lawful cause his continued detention is
warranted.
Costs de oficio.
SO ORDERED.
Facts:
Quiao, the gunman who killed the victims, confessed during the
investigation conducted by Baguio City Fiscal Erdolfo Balajadia in his office
that he was the triggerman. He implicated Abenoja, Jr., who engaged him
to kill Dr. Bayquen for a fee, Cartel, who provided the armalite, and a
certain "Jimmy." During the investigation, Wilfredo Quiao was assisted by
Atty. Reynaldo Cajucom. Stenographic notes of the proceedings during the
investigation as transcribed with the sworn statement of Quiao was
signed, with the assistance of Atty. Cajucom, and swore to before City
Fiscal Balajadia.
The following day, Agustin was apprehended, and was investigated and
was afforded the privileges like that of Quiao. Agustins defense interpose
that he was forced to admit involvement at gunpoint at Kennon Road. He
further declared that although he was given a lawyer, Cajucom (a law
partner of the private prosecutor), he nevertheless, asked for his uncle
Atty. Oliver Tabin, and that Atty. Cajucom interviewed him from only two
minutes in English and Tagalog but not in Ilocano, the dialect he
understands. The promise that he would be discharged as a witness did not
push through since Quiao escaped. However the RTC convicted him, since
conspiracy was established, hence this appeal.

Issue: Whether or not accused-appellants extrajudicial statements are

admissible as evidence to warrant conviction.
Held:
No. The statement of the accused is inadmissible as evidence in court.
Despite asking for his uncle to represent him he was provided with an
impartial counsel who is an associate of the private prosecutor. It also
appears that some of the transcripts of the notes of the proceeding that
show the extrajudicial statement made by the accused were not signed by
him. By making his statements the accused voluntarily waived his right to
remain silent but that was not put in writing either.
It would be in violation of the mandate of custodial investigation to admit
the statement of the accused when the process undertaken is one bereft of
meeting the standard requirements of the due process that should be
accorded to the accused in custodial investigation, hence he should be
acquitted.
Facts:
Dr. Bayquen, a dentist, together with his son, Anthony; Anthony's girlfriend,
Anna Theresa; his daughter, Dominic; and Danny, a family friend, were on
their way aboard their Brasilia to the doctor's residence at Malvar Street,
Baguio City. While they were cruising along Malvar Street and nearing the
Baptist church, a man came out from the right side of a car parked about
two meters to the church. The man approached the Brasilia, aimed his
armalite rifle through its window, and fired at the passengers. The Brasilia
swerved and hit a fence. The gunman immediately returned to the parked
car which then sped away. All those in the car were hit and Dr. Bayquen
and Anna Theresa died on the spot. Dominic was bale to get out of the
Brasilia to run to the Alabanza store where she telephoned her mother.
Later, she and her mother brought her father and Anthony to the hospital.
Danny went home and was then brought to the Hospital for treatment.
Accused Quiao, an alleged former military agent who had been picked up
by the police authorities, confessed during the investigation conducted by
Baguio City Fiscal Erdolfo Balajadia in his office that he was the triggerman.
He implicated Abenoja, Jr., who engaged him to kill Dr. Bayquen for a fee,
Cartel, who provided the armalite, and a certain "Jimmy." During the
investigation, Wilfredo Quiao was assisted by Atty. Reynaldo Cajucom.
Stenographic notes of the proceedings during the investigation as
transcribed with the sworn statement of Quiao was signed, with the

51
assistance of Atty. Cajucom, and swore to before City Fiscal Balajadia. The
following day, Agustin was apprehended, and was investigated and was
afforded the privileges like that of Quijano. Agustins defense interpose
that he was forced to admit involvement at gunpoint in the Kennon Road.
He further declared that although he was given a lawyer, Cajucom (a law
partner of the private prosecutor), he nevertheless, asked for his uncle
Atty. Oliver Tabin, and that Atty. Cajucom interviewed him from only two
minutes in English and Tagalog but not in Ilocano, the dialect he
understands. The promise that he would be discharged as a witness did not
push through since Quijano escaped. However the RTC convicted him,
since conspiracy was established. Hence the appeal.
Issue: Whether or Not accused-appellants extrajudicial statements
admissible as evidence.
Held:
No. Extrajudicial statement is not extrajudicial confession. In a confession,
there is an acknowledgment of guilt of the accused, while an admission is a
statement direct or implied of facts pertinent to the issue. The rule on
inadmissibility, however expressly includes admissions, not just
confessions.The extrajudicial admission of the appellant, contained in
twenty-two pages appear to be signed by him and Atty. Cajucom but for
reasons not explained in the records, the transcript of the notes which
consists of twelve pages was not signed by the appellant. Since the court
cannot even read or decipher the stenographic notes it cannot be expected
that appellant, who is a farmer and who reached only the fourth grade, to
read or decipher its contents. The appellant, therefore was deprived of his
rights under Section 12(1), Article III of the Constitution. Firstly, he was not
fully and properly informed of his rights. The appellant was not explicitly
told of his right to have a competent and independent counsel of his
choice, specifically asked if he had in mind any such counsel and, if so,
whether he could afford to hire his services, and, if he could not, whether
he would agree to be assisted by one to be provided for him. He was not
categorically informed that he could waive his rights to remain silent and
to counsel and that this waiver must be in writing and in the presence of
his counsel. He had, in fact, waived his right to remain silent by agreeing to
be investigated. Yet, no written waiver of such right appears in the
transcript and no other independent evidence was offered to prove its
existence. In short, after the appellant said that he wanted to be assisted
by counsel, the City fiscal, through suggestive language, immediately
informed him that Atty. Cajucom was ready to assist him. Moreso said

counsel is not independent since he is an associate of the private

prosecutor.

52
FIRST DIVISION
BOSTON BANK OF THE PHILIPPINES, (formerly BANK OF COMMERCE),
Petitioner,
- versus PERLA P. MANALO and CARLOS
MANALO, JR.,
Respondents.

February 9, 2006

x--------------------------------------------------x
DECISION
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the Decision of the Court
of Appeals (CA) in CA-G.R. CV No. 47458 affirming, on appeal, the Decision
of the Regional Trial Court (RTC) of Quezon City, Branch 98, in Civil Case
No. Q-89-3905.
The Antecedents
The Xavierville Estate, Inc. (XEI) was the owner of parcels of land in Quezon
City, known as the Xavierville Estate Subdivision, with an area of 42
hectares. XEI caused the subdivision of the property into residential lots,
which was then offered for sale to individual lot buyers.
On September 8, 1967, XEI, through its General Manager, Antonio Ramos,
as vendor, and The Overseas Bank of Manila (OBM), as vendee, executed a
Deed of Sale of Real Estate over some residential lots in the subdivision,
including Lot 1, Block 2, with an area of 907.5 square meters, and Lot 2,
Block 2, with an area of 832.80 square meters. The transaction was subject
to the approval of the Board of Directors of OBM, and was covered by real
estate mortgages in favor of the Philippine National Bank as security for its
account amounting to P5,187,000.00, and the Central Bank of the
Philippines as security for advances amounting to P22,185,193.74.
Nevertheless, XEI continued selling the residential lots in the subdivision as
agent of OBM.

Sometime in 1972, then XEI president Emerito Ramos, Jr. contracted the
services of Engr. Carlos Manalo, Jr. who was in business of drilling deep
water wells and installing pumps under the business name Hurricane
Commercial, Inc. For P34,887.66, Manalo, Jr. installed a water pump at
Ramos residence at the corner of Aurora Boulevard and Katipunan Avenue,
Quezon City. Manalo, Jr. then proposed to XEI, through Ramos, to purchase
a lot in the Xavierville subdivision, and offered as part of the downpayment
the P34,887.66 Ramos owed him. XEI, through Ramos, agreed. In a letter
dated February 8, 1972, Ramos requested Manalo, Jr. to choose which lots
he wanted to buy so that the price of the lots and the terms of payment
could be fixed and incorporated in the conditional sale. Manalo, Jr. met
with Ramos and informed him that he and his wife Perla had chosen Lots 1
and 2 of Block 2 with a total area of 1,740.3 square meters.
In a letter dated August 22, 1972 to Perla Manalo, Ramos confirmed the
reservation of the lots. He also pegged the price of the lots at P200.00 per
square meter, or a total of P348,060.00, with a 20% down payment of the
purchase price amounting to P69,612.00 less the P34,887.66 owing from
Ramos, payable on or before December 31, 1972; the corresponding
Contract of Conditional Sale would then be signed on or before the same
date, but if the selling operations of XEI resumed after December 31, 1972,
the balance of the downpayment would fall due then, and the spouses
would sign the aforesaid contract within five (5) days from receipt of the
notice of resumption of such selling operations. It was also stated in the
letter that, in the meantime, the spouses may introduce improvements
thereon subject to the rules and regulations imposed by XEI in the
subdivision. Perla Manalo conformed to the letter agreement.
The spouses Manalo took possession of the property on September 2,
1972, constructed a house thereon, and installed a fence around the
perimeter of the lots.
In the meantime, many of the lot buyers refused to pay their monthly
installments until they were assured that they would be issued Torrens
titles over the lots they had purchased. The spouses Manalo were notified
of the resumption of the selling operations of XEI. However, they did not
pay the balance of the downpayment on the lots because Ramos failed to
prepare a contract of conditional sale and transmit the same to Manalo for
their signature. On August 14, 1973, Perla Manalo went to the XEI office
and requested that the payment of the amount representing the balance of
the downpayment be deferred, which, however, XEI rejected. On August
10,
1973, XEI furnished her with a statement of their account as of July 31,
1973, showing that they had a balance of P34,724.34 on the downpayment
of the two lots after deducting the account of Ramos, plus P3,819.68

53
interest thereon from September 1, 1972 to July 31, 1973, and that the
interests on the unpaid balance of the purchase price of P278,448.00 from
September 1, 1972 to July 31, 1973 amounted to P30,629.28. The spouses
were informed that they were being billed for said unpaid interests.
On January 25, 1974, the spouses Manalo received another statement of
account from XEI, inclusive of interests on the purchase price of the lots.
In a letter dated April 6, 1974 to XEI, Manalo, Jr. stated they had not yet
received the notice of resumption of Leis selling operations, and that there
had been no arrangement on the payment of interests; hence, they should
not be charged with interest on the balance of the downpayment on the
property. Further, they demanded that a deed of conditional sale over the
two lots be transmitted to them for their signatures. However, XEI ignored
the demands. Consequently, the spouses refused to pay the balance of the
downpayment of the purchase price.
Sometime in June 1976, Manalo, Jr. constructed a business sign in the
sidewalk near his house. In a letter dated June 17, 1976, XEI informed
Manalo, Jr. that business signs were not allowed along the sidewalk. It
demanded that he remove the same, on the ground, among others, that
the sidewalk was not part of the land which he had purchased on
installment basis from XEI. Manalo, Jr. did not respond. XEI reiterated its
demand on September 15, 1977.
Subsequently, XEI turned over its selling operations to OBM, including the
receivables for lots already contracted and those yet to be sold. On
December 8, 1977, OBM warned Manalo, Jr., that putting up of a business
sign is specifically prohibited by their contract of conditional sale and that
his failure to comply with its demand would impel it to avail of the
remedies as provided in their contract of conditional sale.
Meanwhile, on December 5, 1979, the Register of Deeds issued Transfer
Certificate of Title (TCT) No. T-265822 over Lot 1, Block 2, and TCT No. T265823 over Lot 2, Block 2, in favor of the OBM. The lien in favor of the
Central Bank of the Philippines was annotated at the dorsal portion of said
title, which was later cancelled on August 4, 1980.
Subsequently, the Commercial Bank of Manila (CBM) acquired the
Xavierville Estate from OBM. CBM wrote Edilberto Ng, the president of
Xavierville Homeowners Association that, as of January 31, 1983, Manalo,
Jr. was one of the lot buyers in the subdivision. CBM reiterated in its letter
to Ng that, as of January 24, 1984, Manalo was a homeowner in the
subdivision.
In a letter dated August 5, 1986, the CBM requested Perla Manalo to stop
any on-going construction on the property since it (CBM) was the owner of

the lot and she had no permission for such construction. She agreed to
have a conference meeting with CBM officers where she informed them
that her husband had a contract with OBM, through XEI, to purchase the
property. When asked to prove her claim, she promised to send the
documents to CBM. However, she failed to do so. On September 5, 1986,
CBM reiterated its demand that it be furnished with the documents
promised, but Perla Manalo did not respond.
On July 27, 1987, CBM filed a complaint for unlawful detainer against the
spouses with the Metropolitan Trial Court of Quezon City. The case was
docketed as Civil Case No. 51618. CBM claimed that the spouses had been
unlawfully occupying the property without its consent and that despite its
demands, they refused to vacate the property. The latter alleged that they,
as vendors, and XEI, as vendee, had a contract of sale over the lots which
had not yet been rescinded.
While the case was pending, the spouses Manalo wrote CBM to offer an
amicable settlement, promising to abide by the purchase price of the
property (P313,172.34), per agreement with XEI, through Ramos. However,
on July 28, 1988, CBM wrote the spouses, through counsel, proposing that
the price of P1,500.00 per square meter of the property was a reasonable
starting point for negotiation of the settlement. The spouses rejected the
counter proposal, emphasizing that they would abide by their original
agreement with XEI. CBM moved to withdraw its complaint because of the
issues raised.
In the meantime, the CBM was renamed the Boston Bank of
Philippines. After CBM filed its complaint against the spouses Manalo,
latter filed a complaint for specific performance and damages against
bank before the Regional Trial Court (RTC) of Quezon City on October
1989.

the
the
the
31,

The plaintiffs alleged therein that they had always been ready, able and
willing to pay the installments on the lots sold to them by the defendants
remote predecessor-in-interest, as might be or stipulated in the contract of
sale, but no contract was forthcoming; they constructed their house worth
P2,000,000.00 on the property in good faith; Manalo, Jr., informed the
defendant, through its counsel, on October 15, 1988 that he would abide
by the terms and conditions of his original agreement with the defendants
predecessor-in-interest; during the hearing of the ejectment case on
October 16, 1988, they offered to pay P313,172.34 representing the
balance on the purchase price of said lots; such tender of payment was
rejected, so that the subject lots could be sold at considerably higher
prices to third parties.
Plaintiffs further alleged that upon payment of the P313,172.34, they were
entitled to the execution and delivery of a Deed of Absolute Sale covering

54
the subject lots, sufficient in form and substance to transfer title thereto
free and clear of any and all liens and encumbrances of whatever kind and
nature.
The plaintiffs prayed that, after due hearing, judgment be
rendered in their favor, to wit:
WHEREFORE, it is respectfully prayed that after due hearing:
(a) The defendant should be ordered to execute and deliver a Deed
Absolute Sale over subject lots in favor of the plaintiffs after payment
the sum of P313,172.34, sufficient in form and substance to transfer
them titles thereto free and clear of any and all liens and encumbrances
whatever kind or nature;

of
of
to
of

(b) The defendant should be held liable for moral and exemplary damages
in the amounts of P300,000.00 and P30,000.00, respectively, for not
promptly executing and delivering to plaintiff the necessary Contract of
Sale, notwithstanding repeated demands therefor and for having been
constrained to engage the services of undersigned counsel for which they
agreed to pay attorneys fees in the sum of P50,000.00 to enforce their
rights in the premises and appearance fee of P500.00;
(c) And for such other and further relief as may be just and equitable in the
premises.
In its Answer to the complaint, the defendant interposed the following
affirmative defenses: (a) plaintiffs had no cause of action against it
because the August 22, 1972 letter agreement between XEI and the
plaintiffs was not binding on it; and (b) it had no record of any contract to
sell executed by it or its predecessor, or of any statement of accounts from
its predecessors, or records of payments of the plaintiffs or of any
documents which entitled them to the possession of the lots.
The
defendant, likewise, interposed counterclaims for damages and attorneys
fees and prayed for the eviction of the plaintiffs from the property.
Meanwhile, in a letter dated January 25, 1993, plaintiffs, through counsel,
proposed an amicable settlement of the case by paying P942,648.70,
representing the balance of the purchase price of the two lots based on the
current market value. However, the defendant rejected the same and
insisted that for the smaller lot, they pay P4,500,000.00, the current
market value of the property. The defendant insisted that it owned the
property since there was no contract or agreement between it and the
plaintiffs relative thereto.
During the trial, the plaintiffs adduced in evidence the separate Contracts
of Conditional Sale executed between XEI and Alberto Soller; Alfredo
Aguila, and Dra. Elena Santos-Roque to prove that XEI continued selling

residential lots in the subdivision as agent of OBM after the latter had
acquired the said lots.
For its part, defendant presented in evidence the letter dated August 22,
1972, where XEI proposed to sell the two lots subject to two suspensive
conditions: the payment of the balance of the downpayment of the
property, and the execution of the corresponding contract of conditional
sale. Since plaintiffs failed to pay, OBM consequently refused to execute
the corresponding contract of conditional sale and forfeited the P34,877.66
downpayment for the two lots, but did not notify them of said forfeiture. It
alleged that OBM considered the lots unsold because the titles thereto bore
no annotation that they had been sold under a contract of conditional sale,
and the plaintiffs were not notified of XEIs resumption of its selling
operations.
On May 2, 1994, the RTC rendered judgment in favor of the plaintiffs and
against the defendant. The fallo of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and
against the defendant
(a) Ordering the latter to execute and deliver a Deed of Absolute Sale over
Lot 1 and 2, Block 2 of the Xavierville Estate Subdivision after payment of
the sum of P942,978.70 sufficient in form and substance to transfer to
them titles thereto free from any and all liens and encumbrances of
whatever kind and nature.

(b) Ordering the defendant to pay moral and exemplary damages in the
amount of P150,000.00; and
(c) To pay attorneys fees in the sum of P50,000.00 and to pay the costs.
SO ORDERED.
The trial court ruled that under the August 22, 1972 letter agreement of
XEI and the plaintiffs, the parties had a complete contract to sell over the
lots, and that they had already partially consummated the same. It
declared that the failure of the defendant to notify the plaintiffs of the
resumption of its selling operations and to execute a deed of conditional
sale did not prevent the defendants obligation to convey titles to the lots
from acquiring binding effect. Consequently, the plaintiffs had a cause of
action to compel the defendant to execute a deed of sale over the lots in
their favor.

55
Boston Bank appealed the decision to the CA, alleging that the lower court
erred in (a) not concluding that the letter of XEI to the spouses Manalo,
was at most a mere contract to sell subject to suspensive conditions, i.e.,
the payment of the balance of the downpayment on the property and the
execution of a deed of conditional sale (which were not complied with); and
(b) in awarding moral and exemplary damages to the spouses Manalo
despite the absence of testimony providing facts to justify such awards.
On September 30, 2002, the CA rendered a decision affirming that of the
RTC with modification. The fallo reads:
WHEREFORE, the appealed decision is AFFIRMED with MODIFICATIONS that
(a) the figure P942,978.70 appearing [in] par. (a) of the dispositive portion
thereof is changed to P313,172.34 plus interest thereon at the rate of 12%
per annum from September 1, 1972 until fully paid and (b) the award of
moral and exemplary damages and attorneys fees in favor of plaintiffsappellees is DELETED.
SO ORDERED.
The appellate court sustained the ruling of the RTC that the appellant and
the appellees had executed a Contract to Sell over the two lots but
declared that the balance of the purchase price of the property amounting
to P278,448.00 was payable in fixed amounts, inclusive of pre-computed
interests, from delivery of the possession of the property to the appellees
on a monthly basis for 120 months, based on the deeds of conditional sale
executed by XEI in favor of other lot buyers. The CA also declared that,
while XEI must have resumed its selling operations before the end of 1972
and the downpayment on the property remained unpaid as of December
31, 1972, absent a written notice of cancellation of the contract to sell
from the bank or notarial demand therefor as required by Republic Act No.
6552, the spouses had, at the very least, a 60-day grace period from
January 1, 1973 within which to pay the same.
Boston Bank filed a motion for the reconsideration of the decision alleging
that there was no perfected contract to sell the two lots, as there was no
agreement between XEI and the respondents on the manner of payment as
well as the other terms and conditions of the sale. It further averred that its
claim for recovery of possession of the aforesaid lots in its Memorandum
dated February 28, 1994 filed before the trial court constituted a judicial
demand for rescission that satisfied the requirements of the New Civil
Code. However, the appellate court denied the motion.
Boston Bank, now petitioner, filed the instant petition for review on
certiorari assailing the CA rulings. It maintains that, as held by the CA, the
records do not reflect any schedule of payment of the 80% balance of the

purchase price, or P278,448.00. Petitioner insists that unless the parties

had agreed on the manner of payment of the principal amount, including
the other terms and conditions of the contract, there would be no existing
contract of sale or contract to sell. Petitioner avers that the letter
agreement to respondent spouses dated August 22, 1972 merely
confirmed their reservation for the purchase of Lot Nos. 1 and 2, consisting
of 1,740.3 square meters, more or less, at the price of P200.00 per square
meter (or P348,060.00), the amount of the downpayment thereon and the
application of the P34,887.00 due from Ramos as part of such
downpayment.
Petitioner asserts that there is no factual basis for the CA ruling that the
terms and conditions relating to the payment of the balance of the
purchase price of the property (as agreed upon by XEI and other lot buyers
in the same subdivision) were also applicable to the contract entered into
between the petitioner and the respondents. It insists that such a ruling is
contrary to law, as it is tantamount to compelling the parties to agree to
something that was not even discussed, thus, violating their freedom to
contract. Besides, the situation of the respondents cannot be equated with
those of the other lot buyers, as, for one thing, the respondents made a
partial payment on the downpayment for the two lots even before the
execution of any contract of conditional sale.
Petitioner posits that, even on the assumption that there was a perfected
contract to sell between the parties, nevertheless, it cannot be compelled
to convey the property to the respondents because the latter failed to pay
the balance of the downpayment of the property, as well as the balance of
80% of the purchase price, thus resulting in the extinction of its obligation
to convey title to the lots to the respondents.
Another egregious error of the CA, petitioner avers, is the application of
Republic Act No. 6552. It insists that such law applies only to a perfected
agreement or perfected contract to sell, not in this case where the
downpayment on the purchase price of the property was not completely
paid, and no installment payments were made by the buyers.
Petitioner also faults the CA for declaring that petitioner failed to serve a
notice on the respondents of cancellation or rescission of the contract to
sell, or notarial demand therefor. Petitioner insists that its August 5, 1986
letter requiring respondents to vacate the property and its complaint for
ejectment in Civil Case No. 51618 filed in the Metropolitan Trial Court
amounted to the requisite demand for a rescission of the contract to sell.
Moreover, the action of the respondents below was barred by laches
because despite demands, they failed to pay the balance of the purchase
price of the lots (let alone the downpayment) for a considerable number of
years.

56
For their part, respondents assert that as long as there is a meeting of the
minds of the parties to a contract of sale as to the price, the contract is
valid despite the parties failure to agree on the manner of payment. In
such a situation, the balance of the purchase price would be payable on
demand, conformably to Article 1169 of the New Civil Code. They insist
that the law does not require a party to agree on the manner of payment of
the purchase price as a prerequisite to a valid contract to sell. The
respondents cite the ruling of this Court in Buenaventura v. Court of
Appeals to support their submission.
They argue that even if the manner and timeline for the payment of the
balance of the purchase price of the property is an essential requisite of a
contract to sell, nevertheless, as shown by their letter agreement of August
22, 1972 with the OBM, through XEI and the other letters to them, an
agreement was reached as to the manner of payment of the balance of the
purchase price. They point out that such letters referred to the terms of the
terms of the deeds of conditional sale executed by XEI in favor of the other
lot buyers in the subdivision, which contained uniform terms of 120 equal
monthly installments (excluding the downpayment, but inclusive of precomputed interests). The respondents assert that XEI was a real estate
broker and knew that the contracts involving residential lots in the
subdivision contained uniform terms as to the manner and timeline of the
payment of the purchase price of said lots.
Respondents further posit that the terms and conditions to be incorporated
in the corresponding contract of conditional sale to be executed by the
parties would be the same as those contained in the contracts of
conditional sale executed by lot buyers in the subdivision. After all, they
maintain, the contents of the corresponding contract of conditional sale
referred to in the August 22, 1972 letter agreement envisaged those
contained in the contracts of conditional sale that XEI and other lot buyers
executed. Respondents cite the ruling of this Court in Mitsui Bussan Kaisha
v. Manila E.R.R. & L. Co.
The respondents aver that the issues raised by the petitioner are factual,
inappropriate in a petition for review on certiorari under Rule 45 of the
Rules of Court. They assert that petitioner adopted a theory in litigating the
case in the trial court, but changed the same on appeal before the CA, and
again in this Court. They argue that the petitioner is estopped from
adopting a new theory contrary to those it had adopted in the trial and
appellate courts. Moreover, the existence of a contract of conditional sale
was admitted in the letters of XEI and OBM. They aver that they became
owners of the lots upon delivery to them by XEI.
The issues for resolution are the following:
(1) whether the factual issues raised by the petitioner are proper;

(2) whether petitioner or its predecessors-in-interest, the XEI or the OBM,

as seller, and the respondents, as buyers, forged a perfect contract to sell
over the property;
(3) whether petitioner is estopped from contending that no such contract
was forged by the parties; and
(4) whether respondents has a cause of action against the petitioner for
specific performance.
The rule is that before this Court, only legal issues may be raised in a
petition for review on certiorari. The reason is that this Court is not a trier
of facts, and is not to review and calibrate the evidence on record.
Moreover, the findings of facts of the trial court, as affirmed on appeal by
the Court of Appeals, are conclusive on this Court unless the case falls
under any of the following exceptions:
(1) when the conclusion is a finding grounded entirely on speculations,
surmises and conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) where there is a grave abuse of
discretion; (4) when the judgment is based on a misapprehension of facts;
(5) when the findings of fact are conflicting; (6) when the Court of Appeals,
in making its findings went beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee; (7) when the
findings are contrary to those of the trial court; (8) when the findings of
fact are conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondents; and
(10) when the findings of fact of the Court of Appeals are premised on the
supposed absence of evidence and contradicted by the evidence on
record.
We have reviewed the records and we find that, indeed, the ruling of the
appellate court dismissing petitioners appeal is contrary to law and is not
supported by evidence. A careful examination of the factual backdrop of
the case, as well as the antecedental proceedings constrains us to hold
that petitioner is not barred from asserting that XEI or OBM, on one hand,
and the respondents, on the other, failed to forge a perfected contract to
sell the subject lots.
It must be stressed that the Court may consider an issue not raised during
the trial when there is plain error. Although a factual issue was not raised
in the trial court, such issue may still be considered and resolved by the
Court in the interest of substantial justice, if it finds that to do so is
necessary to arrive at a just decision, or when an issue is closely related to
an issue raised in the trial court and the Court of Appeals and is necessary

57
for a just and complete resolution of the case. When the trial court decides
a case in favor of a party on certain grounds, the Court may base its
decision upon some other points, which the trial court or appellate court
ignored or erroneously decided in favor of a party.

In this case, the issue of whether XEI had agreed to allow the respondents
to pay the purchase price of the property was raised by the parties. The
trial court ruled that the parties had perfected a contract to sell, as against
petitioners claim that no such contract existed. However, in resolving the
issue of whether the petitioner was obliged to sell the property to the
respondents, while the CA declared that XEI or OBM and the respondents
failed to agree on the schedule of payment of the balance of the purchase
price of the property, it ruled that XEI and the respondents had forged a
contract to sell; hence, petitioner is entitled to ventilate the issue before
this Court.
We agree with petitioners contention that, for a perfected contract of sale
or contract to sell to exist in law, there must be an agreement of the
parties, not only on the price of the property sold, but also on the manner
the price is to be paid by the vendee.
Under Article 1458 of the New Civil Code, in a contract of sale, whether
absolute or conditional, one of the contracting parties obliges himself to
transfer the ownership of and deliver a determinate thing, and the other to
pay therefor a price certain in money or its equivalent. A contract of sale is
perfected at the moment there is a meeting of the minds upon the thing
which is the object of the contract and the price. From the averment of
perfection, the parties are bound, not only to the fulfillment of what has
been expressly stipulated, but also to all the consequences which,
according to their nature, may be in keeping with good faith, usage and
law. On the other hand, when the contract of sale or to sell is not
perfected, it cannot, as an independent source of obligation, serve as a
binding juridical relation between the parties.
A definite agreement as to the price is an essential element of a binding
agreement to sell personal or real property because it seriously affects the
rights and obligations of the parties. Price is an essential element in the
formation of a binding and enforceable contract of sale. The fixing of the
price can never be left to the decision of one of the contracting parties. But
a price fixed by one of the contracting parties, if accepted by the other,
gives rise to a perfected sale.
It is not enough for the parties to agree on the price of the property. The
parties must also agree on the manner of payment of the price of the

property to give rise to a binding and enforceable contract of sale or

contract to sell. This is so because the agreement as to the manner of
payment goes into the price, such that a disagreement on the manner of
payment is tantamount to a failure to agree on the price.
In a contract to sell property by installments, it is not enough that the
parties agree on the price as well as the amount of downpayment. The
parties must, likewise, agree on the manner of payment of the balance of
the purchase price and on the other terms and conditions relative to the
sale. Even if the buyer makes a downpayment or portion thereof, such
payment cannot be considered as sufficient proof of the perfection of any
purchase and sale between the parties. Indeed, this Court ruled in Velasco
v. Court of Appeals that:

It is not difficult to glean from the aforequoted averments that the

petitioners themselves admit that they and the respondent still had to
meet and agree on how and when the down-payment and the installment
payments were to be paid. Such being the situation, it cannot, therefore,
be said that a definite and firm sales agreement between the parties had
been perfected over the lot in question. Indeed, this Court has already
ruled before that a definite agreement on the manner of payment of the
purchase price is an essential element in the formation of a binding and
enforceable contract of sale. The fact, therefore, that the petitioners
delivered to the respondent the sum of P10,000.00 as part of the
downpayment that they had to pay cannot be considered as sufficient
proof of the perfection of any purchase and sale agreement between the
parties herein under article 1482 of the New Civil Code, as the petitioners
themselves admit that some essential matter the terms of payment still
had to be mutually covenanted.
We agree with the contention of the petitioner that, as held by the CA,
there is no showing, in the records, of the schedule of payment of the
balance of the purchase price on the property amounting to P278,448.00.
We have meticulously reviewed the records, including Ramos February 8,
1972 and August 22, 1972 letters to respondents, and find that said
parties confined themselves to agreeing on the price of the property
(P348,060.00), the 20% downpayment of the purchase price (P69,612.00),
and credited respondents for the P34,887.00 owing from Ramos as part of
the 20% downpayment. The timeline for the payment of the balance of the
downpayment (P34,724.34) was also agreed upon, that is, on or before XEI
resumed its selling operations, on or before December 31, 1972, or within
five (5) days from written notice of such resumption of selling operations.
The parties had also agreed to incorporate all the terms and conditions
relating to the sale, inclusive of the terms of payment of the balance of the
purchase price and the other substantial terms and conditions in the

58
corresponding contract of conditional sale, to be later signed by the
parties, simultaneously with respondents settlement of the balance of the
downpayment.

Caloocan City

The February 8, 1972 letter of XEI reads:

This is to confirm your reservation of Lot Nos. 1 and 2; Block 2 of our

consolidation-subdivision plan as amended, consisting of 1,740.3 square
meters more or less, at the price of P200.00 per square meter or a total
price of P348,060.00.

Mr. Carlos T. Manalo, Jr.

Dear Mrs. Manalo:

Hurricane Rotary Well Drilling

Rizal Avenue Ext.,Caloocan City
Dear Mr. Manalo:
We agree with your verbal offer to exchange the proceeds of your contract
with us to form as a down payment for a lot in our Xavierville Estate
Subdivision.
Please let us know your choice lot so that we can fix the price and terms of
payment in our conditional sale.

It is agreed that as soon as we resume selling operations, you must pay a

down payment of 20% of the purchase price of the said lots and sign the
corresponding Contract of Conditional Sale, on or before December 31,
1972, provided, however, that if we resume selling after December 31,
1972, then you must pay the aforementioned down payment and sign the
aforesaid contract within five (5) days from your receipt of our notice of
resumption of selling operations.
In the meanwhile, you may introduce such improvements on the said lots
as you may desire, subject to the rules and regulations of the subdivision.
If the above terms and conditions are acceptable to you, please signify
your conformity by signing on the space herein below provided.

Sincerely yours, XAVIERVILLE ESTATE, INC.

Thank you.
(Signed)
Very truly yours,
EMERITO B. RAMOS, JR.
XAVIERVILLE ESTATE, INC.

CONFORME:

President
By:
CONFORME:
(Signed)

(Signed)

(Signed)
EMERITO B. RAMOS, JR.

PERLA P. MANALO

CARLOS T. MANALO, JR.

President

Buyer

Hurricane Rotary Well Drilling

The August 22, 1972 letter agreement of XEI and the respondents reads:
Mrs. Perla P. Manalo
1548 Rizal Avenue Extension

Based on these two letters, the determination of the terms of payment of

the P278,448.00 had yet to be agreed upon on or before December 31,
1972, or even afterwards, when the parties sign the corresponding contract
of conditional sale.
Jurisprudence is that if a material element of a contemplated contract is
left for future negotiations, the same is too indefinite to be enforceable.

59
And when an essential element of a contract is reserved for future
agreement of the parties, no legal obligation arises until such future
agreement is concluded.
So long as an essential element entering into the proposed obligation of
either of the parties remains to be determined by an agreement which they
are to make, the contract is incomplete and unenforceable. The reason is
that such a contract is lacking in the necessary qualities of definiteness,
certainty and mutuality.
There is no evidence on record to prove that XEI or OBM and the
respondents had agreed, after December 31, 1972, on the terms of
payment of the balance of the purchase price of the property and the other
substantial terms and conditions relative to the sale. Indeed, the parties
are in agreement that there had been no contract of conditional sale ever
executed by XEI, OBM or petitioner, as vendor, and the respondents, as
vendees.
The ruling of this Court in Buenaventura v. Court of Appeals has no bearing
in this case because the issue of the manner of payment of the purchase
price of the property was not raised therein.
We reject the submission of respondents that they and Ramos had
intended to incorporate the terms of payment contained in the three
contracts of conditional sale executed by XEI and other lot buyers in the
corresponding contract of conditional sale, which would later be signed by
them. We have meticulously reviewed the respondents complaint and find
no such allegation therein. Indeed, respondents merely alleged in their
complaint that they were bound to pay the balance of the purchase price
of the property in installments. When respondent Manalo, Jr. testified, he
was never asked, on direct examination or even on cross-examination,
whether the terms of payment of the balance of the purchase price of the
lots under the contracts of conditional sale executed by XEI and other lot
buyers would form part of the corresponding contract of conditional sale to
be signed by them simultaneously with the payment of the balance of the
downpayment on the purchase price.
We note that, in its letter to the respondents dated June 17, 1976, or
almost three years from the execution by the parties of their August 22,
1972 letter agreement, XEI stated, in part, that respondents had purchased
the property on installment basis. However, in the said letter, XEI failed to
state a specific amount for each installment, and whether such payments
were to be made monthly, semi-annually, or annually. Also, respondents,
as plaintiffs below, failed to adduce a shred of evidence to prove that they
were obliged to pay the P278,448.00 monthly, semi-annually or annually.
The allegation that the payment of the P278,448.00 was to be paid in
installments is, thus, vague and indefinite. Case law is that, for a contract

to be enforceable, its terms must be certain and explicit, not vague or

indefinite.
There is no factual and legal basis for the CA ruling that, based on the
terms of payment of the balance of the purchase price of the lots under the
contracts of conditional sale executed by XEI and the other lot buyers,
respondents were obliged to pay the P278,448.00 with pre-computed
interest of 12% per annum in 120-month installments. As gleaned from the
ruling of the appellate court, it failed to justify its use of the terms of
payment under the three contracts of conditional sale as basis for such
ruling, to wit:
On the other hand, the records do not disclose the schedule of payment of
the purchase price, net of the downpayment. Considering, however, the
Contracts of Conditional Sale (Exhs. N, O and P) entered into by XEI with
other lot buyers, it would appear that the subdivision lots sold by XEI,
under contracts to sell, were payable in 120 equal monthly installments
(exclusive of the downpayment but including pre-computed interests)
commencing on delivery of the lot to the buyer.
By its ruling, the CA unilaterally supplied an essential element to the letter
agreement of XEI and the respondents. Courts should not undertake to
make a contract for the parties, nor can it enforce one, the terms of which
are in doubt. Indeed, the Court emphasized in Chua v. Court of Appeals
that it is not the province of a court to alter a contract by construction or to
make a new contract for the parties; its duty is confined to the
interpretation of the one which they have made for themselves, without
regard to its wisdom or folly, as the court cannot supply material
stipulations or read into contract words which it does not contain.
Respondents, as plaintiffs below, failed to allege in their complaint that the
terms of payment of the P278,448.00 to be incorporated in the
corresponding contract of conditional sale were those contained in the
contracts of conditional sale executed by XEI and Soller, Aguila and Roque.
They likewise failed to prove such allegation in this Court.

The bare fact that other lot buyers were allowed to pay the balance of the
purchase price of lots purchased by them in 120 or 180 monthly
installments does not constitute evidence that XEI also agreed to give the
respondents the same mode and timeline of payment of the P278,448.00.
Under Section 34, Rule 130 of the Revised Rules of Court, evidence that
one did a certain thing at one time is not admissible to prove that he did
the same or similar thing at another time, although such evidence may be

60
received to prove habit, usage, pattern of conduct or the intent of the
parties.
Similar acts as evidence. Evidence that one did or did not do a certain
thing at one time is not admissible to prove that he did or did not do the
same or a similar thing at another time; but it may be received to prove a
specific intent or knowledge, identity, plan, system, scheme, habit, custom
or usage, and the like.

Justice Benjamin Cardozo of the United States Supreme Court: Life casts
the moulds of conduct, which will someday become fixed as law. Law
preserves the moulds which have taken form and shape from life. Usage
furnishes a standard for the measurement of many of the rights and acts of
men. It is also well-settled that parties who contract on a subject matter
concerning which known usage prevail, incorporate such usage by
implication into their agreement, if nothing is said to be contrary.

However, respondents failed to allege and prove, in the trial court, that, as
a matter of business usage, habit or pattern of conduct, XEI granted all lot
buyers the right to pay the balance of the purchase price in installments of
120 months of fixed amounts with pre-computed interests, and that XEI
and the respondents had intended to adopt such terms of payment relative
to the sale of the two lots in question. Indeed, respondents adduced in
evidence the three contracts of conditional sale executed by XEI and other
lot buyers merely to prove that XEI continued to sell lots in the subdivision
as sales agent of OBM after it acquired said lots, not to prove usage, habit
or pattern of conduct on the part of XEI to require all lot buyers in the
subdivision to pay the balance of the purchase price of said lots in 120
months. It further failed to prive that the trial court admitted the said
deeds as part of the testimony of respondent Manalo, Jr.

However, the respondents inexplicably failed to adduce sufficient

competent evidence to prove usage, habit or pattern of conduct of XEI to
justify the use of the terms of payment in the contracts of the other lot
buyers, and thus grant respondents the right to pay the P278,448.00 in
120 months, presumably because of respondents belief that the manner of
payment of the said amount is not an essential element of a contract to
sell. There is no evidence that XEI or OBM and all the lot buyers in the
subdivision, including lot buyers who pay part of the downpayment of the
property purchased by them in the form of service, had executed contracts
of conditional sale containing uniform terms and conditions. Moreover,
under the terms of the contracts of conditional sale executed by XEI and
three lot buyers in the subdivision, XEI agreed to grant 120 months within
which to pay the balance of the purchase price to two of them, but granted
one 180 months to do so. There is no evidence on record that XEI granted
the same right to buyers of two or more lots.

Habit, custom, usage or pattern of conduct must be proved like any other
facts. Courts must contend with the caveat that, before they admit
evidence of usage, of habit or pattern of conduct, the offering party must
establish the degree of specificity and frequency of uniform response that
ensures more than a mere tendency to act in a given manner but rather,
conduct that is semi-automatic in nature. The offering party must allege
and prove specific, repetitive conduct that might constitute evidence of
habit. The examples offered in evidence to prove habit, or pattern of
evidence must be numerous enough to base on inference of systematic
conduct. Mere similarity of contracts does not present the kind of
sufficiently similar circumstances to outweigh the danger of prejudice and
confusion.

Irrefragably, under Article 1469 of the New Civil Code, the price of the
property sold may be considered certain if it be so with reference to
another thing certain. It is sufficient if it can be determined by the
stipulations of the contract made by the parties thereto or by reference to
an agreement incorporated in the contract of sale or contract to sell or if it
is capable of being ascertained with certainty in said contract; or if the
contract contains express or implied provisions by which it may be
rendered certain; or if it provides some method or criterion by which it can
be definitely ascertained. As this Court held in Villaraza v. Court of
Appeals, the price is considered certain if, by its terms, the contract
furnishes a basis or measure for ascertaining the amount agreed upon.

In determining whether the examples are numerous enough, and

sufficiently regular, the key criteria are adequacy of sampling and
uniformity of response. After all, habit means a course of behavior of a
person regularly represented in like circumstances.
It is only when
examples offered to establish pattern of conduct or habit are numerous
enough to lose an inference of systematic conduct that examples are
admissible. The key criteria are adequacy of sampling and uniformity of
response or ratio of reaction to situations.
There are cases where the course of dealings to be followed is defined by
the usage of a particular trade or market or profession. As expostulated by

We have carefully reviewed the August 22, 1972 letter agreement of the
parties and find no direct or implied reference to the manner and schedule
of payment of the balance of the purchase price of the lots covered by the
deeds of conditional sale executed by XEI and that of the other lot buyers
as basis for or mode of determination of the schedule of the payment by
the respondents of the P278,448.00.
The ruling of this Court in Mitsui Bussan Kaisha v. Manila Electric Railroad
and Light Company is not applicable in this case because the basic price
fixed in the contract was P9.45 per long ton, but it was stipulated that the
price was subject to modification in proportion to variations in calories and

61
ash content, and not otherwise. In this case, the parties did not fix in their
letters-agreement, any method or mode of determining the terms of
payment of the balance of the purchase price of the property amounting to
P278,448.00.

agreement.4. Thereafter, the spouses constructed a house on the property.

The spouses were notified of XEIs resumption of selling operations.

SO ORDERED.

However, they did not pay the balance of the down payment because XEI
failed to prepare a contract of conditional sale and transmit the same to
them. XEI also billed them for unpaid interests which they also refused to
pay. XEI turned over its selling operations to OBM.5. Subsequently,
Commercial Bank of Manila (CBM) acquired the Xavierville Estate from
OBM. CBM requested Perla Manalo to stop any on-going construction on
the property since it (CBM) was the owner of the lot and she had no
permission for such construction. Perla informed them that her husband
had a contract with OBM, through XEI, to purchase the property. She
promised to send CBM the documents. However, she failed to do so. Thus,
CBM filed a complaint for unlawful detainer against the spouses. But later
on, CBM moved to withdraw its complaint because of the issues raised. In
the meantime, CBM was renamed the Boston Bank of the Philippines.6.
Then, the spouses filed a complaint for specific performance and damages
against the bank before the RTC. The spouses alleged that they had always
been ready and willing to pay the installments on the lots sold to them but
no contract was forthcoming. The spouses further alleged that upon their
partial payment of the down payment, they were entitled to the execution
and delivery of a Deed of Absolute Sale covering the subject lots. During
the trial, the spouses adduced in evidence the separate Contracts of
Conditional Sale executed between XEI and 3 other buyers to prove that
XEI continued selling residential lots in the subdivision as agent of OBM
after the latter had acquired the said lots.

FACTS:

RTC :

1. Xavierville Estate, Inc. (XEI) sold to The Overseas Bank of Manila

(OBM)some residential lots in Xavierville subdivision. Nevertheless, XEI
continued selling the residential lots in the subdivision as agent of OBM.2.
Carlos Manalo, Jr. proposed to XEI, through its President Emerito
Ramos(Ramos), that he will purchase two lots in the Xavierville subdivision
and offered as part of the downpayment the P34,887.66 Ramos owed him.
XEI, through Ramos, agreed.3. In a letter dated August 22, 1972 to Perla
Manalo (Carlos wife), Ramos confirmed the reservation of the lots. In the
letter he also pegged the price of the lots at P348,060 with a 20% down
payment of the purchase price amounting to P69,612.00 (less the
P34,887.66 owing from Ramos), payable as soon as XEI resumes its selling
operations; the corresponding Contract of Conditional Sale would then be
signed on or before the same date. Perla Manalo conformed to the letter

The trial court ordered the petitioner (Boston Bank) to execute a Deed of
Absolute Sale in favor of the spouses upon the payment of the spouses of
the balance of the purchase price. It ruled that under the August 22,
1972letter agreement of XEI and the spouses, the parties had a "complete
contract to sell" over the lots, and that they had already partially
consummated the same.

It bears stressing that the respondents failed and refused to pay the
balance of the downpayment and of the purchase price of the property
amounting to P278,448.00 despite notice to them of the resumption by XEI
of its selling operations. The respondents enjoyed possession of the
property without paying a centavo. On the other hand, XEI and OBM failed
and refused to transmit a contract of conditional sale to the respondents.
The respondents could have at least consigned the balance of the
downpayment after notice of the resumption of the selling operations of
XEI and filed an action to compel XEI or OBM to transmit to them the said
contract; however, they failed to do so.
As a consequence, respondents and XEI (or OBM for that matter) failed to
forge a perfected contract to sell the two lots; hence, respondents have no
cause of action for specific performance against petitioner. Republic Act
No. 6552 applies only to a perfected contract to sell and not to a contract
with no binding and enforceable effect.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of
the Court of Appeals in CA-G.R. CV No. 47458 is REVERSED and SET ASIDE.
The Regional Trial Court of Quezon City, Branch 98 is ordered to dismiss
the complaint. Costs against the respondents.

CA:
The Court of Appeals sustained the ruling of the RTC, but declared that the
balance of the purchase price of the property was payable in fixed amounts
on a monthly basis for 120 months, based on the deeds of conditional sale
executed by XEI in favor of other lot buyers. Boston Bank filed a Motion for
the Reconsideration of the decision alleging that there was no perfected

62
contract to sell the two lots, as there was no agreement between XEI and
the respondents on the manner of payment as well as the other terms and
conditions of the sale. Boston Bank also asserts that there is no factual
basis for the CA ruling that the terms and conditions relating to the
payment of the balance of the purchase price of the property(as agreed
upon by XEI and other lot buyers in the same subdivision) were also
applicable to the contract entered into between the petitioner and the
respondents. CA denied the MR.

goes into the price, such that a disagreement on the manner of payment is
tantamount to a failure to agree on the price. We have meticulously
reviewed the records, including Ramos February 8, 1972 and August 22,
1972 letters to respondents and find that said parties confined themselves
to agreeing on the price of the property (P348,060.00), the 20% down
payment of the purchase price (P69,612.00), and credited respondents for
the P34,887.00

ISSUES:

(1) when the conclusion is a finding grounded entirely on speculations,

surmises and conjectures;

1.) Whether or not the factual issues raised by the petitioner are proper

(2) when the inference made is manifestly mistaken, absurd or impossible;

2.) Whether or not there was a perfected contract to sell the property

(3) where there is a grave abuse of discretion;

3.) Whether or not the CA correctly held that the terms of the deeds of
conditional sale executed by XEI in favor of the other lot buyers in the
subdivision, which contained uniform terms of 120 equal monthly
installments, constitute evidence that XEI also agreed to give the Manalo
spouses the same mode and timeline of payment. (Evidence, Disputable
Presumptions, Habits and Customs Rule 130, Section 34)

(4) when the judgment is based on a misapprehension of facts;

HELD:
1.) YES. The rule is that before this Court, only legal issues may be raised
in a petition for review on certiorari. The reason is that this Court is not a
trier of facts, and is not to review and calibrate the evidence on record.
Moreover, the findings of facts of the trial court, as affirmed on appeal by
the Court of Appeals, are conclusive on this Court unless the case falls
under any of the following exceptions.
1. A careful examination of the factual backdrop of the case, as well as the
antecedental proceedings constrains us to hold that petitioner is not barred
from asserting that XEI or OBM, on one hand, and the respondents, on the
other, failed to forge a perfected contract to sell the subject lots.2.) NO. In
a contract to sell property by installments, it is not enough that the parties
agree on the price as well as the amount of down payment. The parties
must, likewise, agree on the manner of payment of the balance of the
purchase price and on the other terms and conditions relative to the sale.
Even if the buyer makes a down payment or portion thereof, such payment
cannot be considered as sufficient proof of the perfection of any purchase
and sale between the parties. A contract of sale is perfected at the
moment there is a meeting of the minds upon the thing which is the object
of the contract and the price. The agreement as to the manner of payment

(5) when the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings went beyond the
issues of the case and the same is contrary to the admissions of both
appellant and appellee;
(7) When the findings are contrary to those of the trial court;
(8) When the findings of fact are conclusions without citation of specific
evidence on which they are based;
(9) When the facts set forth in the petition as well as in the petitioners
main and reply briefs are not disputed by the respondents; and
(10) When the findings of fact of the Court of Appeals are premised on the
supposed absence of evidence and contradicted by the evidence on
record. We have reviewed the records and we find that, indeed, the ruling
of the appellate court dismissing petitioners appeal is contrary to law and
is not supported by evidence.
Owing from Ramos as part of the 20% down payment. Based on these two
letters, the determination of the terms of payment of the P278,448.00 had
yet to be agreed upon on or before December 31, 1972, or even
afterwards, when the parties sign the contract of conditional sale. So long
as an essential element entering into the proposed obligation of either of
the parties remains to be determined by an agreement which they are to
make, the contract is incomplete and unenforceable.

63
3.) NO. The bare fact that other lot buyers were allowed to pay the balance
of the purchase price of lots purchased by them in 120 or 180 monthly
installments does not constitute evidence that XEI also agreed to give the
respondents the same mode and timeline of payment. Under Section 34,
Rule 130 of the Revised Rules of Court, evidence that one did a certain
thing at one time is not admissible to prove that he did the same or similar
thing at another time, although such evidence may be received to prove
habit, usage, pattern of conduct or the intent of the parties. Habit, custom,
usage or pattern of conduct must be proved like any other facts. The
offering party must establish the degree of specificity and frequency of
uniform response that ensures more than a mere tendency to act in a
given manner but rather, conduct that is semi-automatic in nature. The
offering party must allege and prove specific, repetitive conduct that might
constitute evidence of habit. The examples offered in evidence to prove
habit, or pattern of evidence must be numerous enough to base on
inference of systematic conduct. Mere similarity of contracts does not
present the kind of sufficiently similar circumstances to outweigh the
danger of prejudice and confusion. In determining whether the examples
are numerous enough, and sufficiently regular, the key criteria are
adequacy of sampling and uniformity of response. It is only when examples
offered to establish pattern of conduct or habit are numerous enough to
lose an inference of systematic conduct that examples are admissible.
Respondents failed to allege and prove that, as a matter of business usage,
habit or pattern of conduct, XEI granted all lot buyers the right to pay the
balance of the purchase price in installments of 120 months of fixed
amounts with pre-computed interests, and that XEI and the respondents
had intended to adopt such terms of payment relative to the sale of the
two lots in question. Indeed, respondents adduced in evidence the three
contracts of conditional sale executed by XEI and other lot buyers merely
to prove that XEI continued to sell lots in the subdivision as sales agent of
OBM after it acquired said lots, not to prove usage, habit or pattern of
conduct on the part of XEI to require all lot buyers in the subdivision to pay
the balance of the purchase price of said lots in 120 months.

64
THIRD DIVISION

had been living in Barangay Bambana, Miag-ao, Iloilo, for a long time
already. She knows the accused for about 7 years before May 28, 1987.

G.R. No. 116305 July 2, 1998

On the evening of May 28, 1987, she was inside their house at Barangay
Bambanan, Miag-ao, Iloilo. She was together with her two brothers, eleven
and eight years old, and a nine year old sister. She was then fifteen years
old going sixteen.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ENDRIQUITO REYNALDO alias QUITO, defendant-appellant.
KAPUNAN, J.:
This is an appeal from the Decision dated October 29, 1991 of the Regional
Trial Court of Iloilo. Sixth Judicial Region 25 in Criminal Case No. 31084
finding accused Endriquito Reynaldo alias "Quito" guilty of the crime of
Rape and sentencing him to suffer the penalty of reclusion perpetua to
indemnify the complainant Anacyl Barrera in the sum of Thirty Thousand
Pesos (P30,000.00) and to pay costs. 1
On the basis of a complaint dated May 29, 1987 2 filed by the victim Anacyl
Barrera, an Information dated October 23, 1987, 3 was filed against
accused-appellant, as follows:
That on or about May 28, 1987, in the Municipality of Miagao, Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with the use of a knife and by means of
force and intimidation did then and there wilfully, unlawfully and
feloniously have sexual intercourse or carnal knowledge with
Anacyl Barrera, a girl 16 years of age, against her will and/or
consent.
CONTRARY TO LAW.
At his arraignment, appellant pleaded not guilty to the crime charged.

The trial court summarized the testimony of sixteen-year old Anacyl

Barrera as follows:
She knows the accused, Endriquito Reynaldo already before May 28, 1987,
as the wife of her uncle is the sister of the wife of the accused. Accused

At about 10:30 that evening, while her brothers and her sister were already
asleep, she was awakened because a knife was pointed at her. They were
then sleeping at the sala of the house. Aside from the knife pointed at her,
she felt her breast being mashed. While the knife was being pointed at her
and her breast being mashed, she was told that if she makes any noise or
if she told anybody they would all be killed including her aunt. She
recognized the person to be the accused, Endriquito Reynaldo, as she was
familiar with his voice and his two hands which were hairy. After having
mashed her breast, still pointing the knife at her, he dragged her to their
room and ordered her to take off her clothes. He was pointing the knife at
the right side of her body somewhere on the right waistline. When she was
inside the bedroom and was ordered to take off her clothes, she was very
much frightened and did not seem to know what to do. She was lying down
when she was told to take off her clothes. Then the accused laid on top of
her while pointing the knife at her. He was then naked. While he was on top
of her he inserted his penis inside her vagina. She lost track of what was
happening and she become unconscious. When she regained her
consciousness the accused was gone. She noticed a whitish and sticky
substance at the side of her vagina. She felt her body aching including her
breast, stomach and vagina. She went to sleep after that. The following
morning she washed her clothes, took a bath and cleaned the house.
At about 12:00 o'clock while they were having lunch, her aunt Josefina
Nobleza, who was looking after them since their parents were in Manila
came over. She was crying and her aunt asked her what it was about and
she told her aunt about what happened to her and the person responsible
for it, naming the accused, Endriquito Reynaldo. After she informed her
aunt about it, her aunt went to the Police that May 29, 1987, while she
went to her grandmother's place as she had a very bad headache from her
failure to sleep the night before. Her aunt returned from the Poblacion with
policemen and arrested the accused who was living with her sister a house
away. The accused was brought to town while she was brought to the
hospital for medical examination and later brought home.

65
She filed a complaint in connection with the said incident against the
accused in the Municipality of Miag-ao specifically with the Municipal Court
(Exh. "A" and "A-1"). She gave a written statement when investigated (Exh.
"B" and "B-1" and Exh. "B-2").
Three days after the incident her parents from Manila arrived as they were
notified. She told them of the incident and informed them that it was the
accused who raped her. She was examined at the Guimbal General
Hospital, Gimbal, Iloilo.
On cross-examination, complainant testified that the accused is single as it
is the wife of Bernardo Mondana who is the sister of the wife of her uncle.
Their house at Barangay Bambanan is one story, a one-room bamboo and
nipa house surrounded by a bamboo pole. Before they went to sleep that
night she inspected all the doors and windows and they were locked and
they slept on the sala with her brothers and sisters. She was on the outermost portion near the door, also near her brothers and sisters. They were
under a mosquito net. She was able to identify the accused because she
touched his hand and his face when she was told to take off her clothes.
The room where she was brought was very near the place where they slept
and she did not resist because the accused was constantly pointing the
knife about a foot long at her. She was inside the room when she was
required to take off her clothes without resistance as the four of them
would be killed.
He laid on top of her and inserted his penis inside her vagina which was
able to penetrate her. She felt pain in her vagina at the inner part and she
lost consciousness because of pain. When she regained consciousness
accused was seated by the side telling her not to tell anybody or else he
would kill all four of them. The following morning she felt the pains on the
inner part of her thighs and on both sides of her vagina. She, her sister sad
two brothers were the only occupants of the house. Her aunt Josefina
Nobleza looked after them who usually comes in the morning. On that
morning of May 29, 1987 she came over but she stayed for a short time
only. She did not inform her aunt of what happened to her that morning
neither her brothers and sister. Her aunt came back about lunch time
because her brother informed her aunt about it. Her aunt changed clothes
and went to the Poblacion. She later came back with four policemen who
went around the house to find out the damaged portion. Her aunt informed
them of the identity of the rapist to be the accused, Endriquito Reynaldo,
so that the accused was arrested because she had already told the
policemen when she went to the Poblacion. She was investigated by the

Policemen and confirmed the statement of her aunt that it was Endriquito
Reynaldo who raped her. 5
Dr. Alberto G. Gatusang conducted the physical examination of the
complainant on May 29, 1987 and made the following findings:
Internal Examination
= No laceration or hematomas noted at the vaginal opening.
= Presence of whitish discharge at the vaginal canal.
= Admits 1 finger inside the vaginal canal with resistance.
REMARKS: Vaginal smear for presence of sperm =
(-) negative findings.

Dr. Gatusang testified in court that the fact that the vagina of the victim
bore no lacerations or hematomas did not discount the possibility of the
rape having occurred. The whitish discharge found on the victim's vaginal
canal may either be semen or the victim's natural discharge. The fact that
the victim complained of pain and her vaginal canal offered resistance
when a finger was inserted into it could mean that there was partial or full
penetration of the labia minora. 7 Dr. Gatusang further testified that the
absence of sperm in the victim's vaginal canal may be due to the victim's
having cleaned herself after the incident or the possibility that ejaculation
happened outside the vaginal canal. 8
Appellant denied having committed the crime and interposed the defense
of alibi. He alleged that at the time of the incident, he was with a certain
Rogelio Norada at the latter's house in Barangay Kirayan, and slept there
for the night, leaving only the following morning to peddle fish in Barangay
Tikdalan. 9 He arrived at his house at two o'clock in the afternoon, where
he was later arrested by policemen bearing a warrant. 10
The defense also presented Rogelio Norada to corroborate appellant's alibi.
In a Decision dated October 29, 1991, the trial court convicted appellant as
follows:

66
WHEREFORE, the Court finds the accused, ENDRIQUITO REYNALDO
guilty beyond reasonable doubt of the crime of Rape defined and
punished under Art. 335 of the Revised Penal Code, and is hereby
sentenced to suffer the penalty of reclusion perpetua with all the
accessory penalties provided for by law. Accused is hereby ordered
to indemnify the complainant Anacyl Barrera the sum of THIRTY
THOUSAND PESOS (P30,000.00) and to pay costs. Accused is
credited in full of the period while undergoing preventive
imprisonment provided he agrees in writing to conform with prison
regulations regarding convicted prisoners laid down by prison
authorities. 11
In the instant appeal, appellant contends that:
THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE IDENTITY
OF THE ACCUSED-APPELLANT AS THE PERPETRATOR OF THE CRIME
CHARGED HAS BEEN ESTABLISHED BEYOND REASONABLE DOUBT.

Q Can you again point to where he is inside the courtroom?

A (Witness pointing again to the same person inside the Courtroom who
upon being asked identify [sic] himself as Enriquito Reynaldo.)
Q Because that was already ten o'clock in the evening, can you tell the
Court how were you able to identify him?
A Through his voice.
Q You are familiar with his voice?
A Yes, sir.
Q Aside from his voice, (by) what other means were you able to identify
him?

12

A Through his two hands which were hairy. (Emphasis supplied.)

Appellant points to alleged contradictions in the testimony of the
complainant regarding her identification of the appellant as the perpetrator
of the crime. Appellant asserts that while the complainant testified on
direct examination and cross-examination that she was able to identify her
attacker by his voice and seeing his hairy arms as well as the beard on his
face, on further cross-examination, the complainant testified that she was
able to recognize her assailant as she touched his hand and his face.

14

On cross-examination, the complainant made the same identification as

follows:
Q And you testified that on May 28, 1987 at around 10:30 in the evening,
somebody awakened you and pointed a knife at you?
A Yes, sir.

Complainant testified on direct examination as follows:

Q Because of that, you did not shout?
Q Because you were awakened at that time, did you recognize the man?
A I did not shout because a knife was pointed at me.
A Yes, sir.
Q And, you were able to identify the rapist by his beard in the face?
Q Who was that man?
A Yes, sir, and because of his voice also.
A Enriquito Reynaldo.

13

Q And, likewise, because of his hairy arms?

Q You said Endriquito Reynaldo. The one whom you identified a fe(w)
moments ago?

A Yes, sir.

A Yes, sir.

Q And, that is your only identification of the rapist?

67
A Yes, sir, and because there was a light I was able to see him." (Emphasis
supplied.) 15
On further cross-examination, the complainant testified, thus;
Q And, were you able to identify that the accused was the one who pointed
that knife?
A Because he told me to take off my clothes at the same time pointing the
knife at me. I was able to recognize him because I touched his hand and
his face.
Q And that was the only identity you make that the accused was the one
who executed the act?
A Yes, sir. (Emphasis supplied.)

16

We agree with the Solicitor General that the alleged contradictions in the
testimony of the complainant pointed to by appellant are "more imaginary
than real" 17 and do not detract from the credibility and trustworthiness of
the complainant's positive identification of appellant as the perpetrator of
the crime. As discussed by the Solicitor General:
. . . The testimony of private complainant as to how she was able to
identify appellant on that fateful evening of May 28, 1987 must be taken
according to the particular stage or sequence of the incident to which it
relates.
When private complainant claimed on direct examination that she was able
to identify appellant through his voice and hairy hands, she was referring
to the initial stage of the incident when she was awakened because of the
knife that was pointed at her body by somebody whom she was able to
recognize at that time through his voice and hairy hands (TSN, December
2, 1988, pp. 5-6).
Her testimony on cross-examination that she was able to recognize
appellant only because she was able to recognize appellant only because
she was already asked by appellant to remove her clothes with the knife
pointed at her (pp. 9-10, TSN, Ibid.). On the other hand, her testimony that
she was able to see appellant because of the light is uncertain as to the
particular stage of the incident to which it pertains.

But even assuming that there were some contradictions in the manner by
which private complainant had been able to recognize appellant, they do
not detract from her positive identification of appellant as the person who
raped her since they all point to the fact that private complainant was able
to recognize the person who raped her that fateful evening. 18
Appellant further faults the identification made by the victim on the ground
that the victim's basis of identifying her attacker is the fact that she
touched the latter's hairy hand and bearded face. 19
It is not necessary that the witness's knowledge of the fact to which he
testifies should have been obtained in any particular manner, and he may
testify to what he hears, feels, tastes, smells, or sees. 20
Thus, identification by the sound of the voice of the person identified has
been held sufficient, and it is an acceptable means of identification where
it is established that the witness and the accused had known each other
personally and closely for a number of years. 21 Here, the complainant
testified that she had known appellant for seven years prior to the incident
because he lived only a house away from theirs. 22 Appellant himself
admitted having known the complainant by name in the three to four years
that he had stayed in Barangay Bambanan. 23 As observed by the trial
court, the complainant and appellant "were familiar with each other since
they lived together in the same barangay [and] . . . the house of the
complainant is barely ten armslength away from the house where the
accused lived." 24 Indeed, people in rural communities generally know each
other both by face and by name, 25 and may be expected to know each
other's distinct and particular features and characteristics.
We have consistently held that the matter of assigning values to
declarations on the witness stand is best and most competently performed
by the trial judge who, unlike appellate magistrates, can weigh the
testimony of a witness in the light of his demeanor, conduct and attitude
as he testified, and is thereby placed in a more competent position to
discriminate between the true and the false. 26 In the instant case, the trial
court considered the testimony of the complainant, the sole witness to the
crime, as worthy of faith thus:
The Court has meticulously examined and scrutinized the
testimonial evidence presented as well as the observations
of the demeanor of the complainant and the accused while
they were giving their testimony in Court. The testimony of

68
the complainant was straightforward, natural and candid
which are earmarks of truth. It leaves not a scintilla of
doubt regarding the veracity of her statements. It was
clear, logical and conclusive. 27
We find no reason to disturb such conclusion. Indeed, it is highly
inconceivable that a young barrio lass like the complainant, who is
inexperienced with the ways of the world, would fabricate a charge of
defloration, undergo a medical examination of her private parts, subject
herself to public trial and tarnish her family's honor and reputation unless
she was motivated by a potent desire to seek justice for the wrong
committed against her. 28 Furthermore, as pointed out by the Solicitor
General, the spontaneity of the complainant's reactions subsequent to the
crime she had unflinchingly named and pointed out appellant, then
roaming in the vicinity of her house, as the offender, when her aunt asked
her why she was crying at around noon of the day following the incident 29
as well as the failure of appellant to impute upon her an improper
motive to accuse him of the crime bolster her credibility. 30
In the Light of the victim's positive identification of appellant as the
perpetrator of the crime, appellant's defense of alibi must fail. We note
besides that the defense failed to prove physical impossibility of appellant
being at the scene of the crime at the time of its commission. Defense
witness Rogelio Norada testified that Barangay Kirayan Norte where
appellant claimed he was at the night of May 28, 1987, was a mere ten
kilometers away 31 from Barangay Bambanan, and access between the two
barangays was easy with transport such as jeepneys, trucks, tricycles and
even trisicads. 32
The trial court correctly found appellant guilty beyond reasonable doubt of
the crime of Rape. Article 335 (1) of the Revised Penal Code of the
Philippines provides that carnal knowledge of a woman may be committed
when force or intimidation is used. The act of holding a knife by itself is
strongly suggestive of force or at least intimidation, and threatening the
victim with a knife is sufficient to bring a woman to submission. 33
The absence of spermatozoa in the victim's vagina does not necessarily
negate the commission of rape. 34 Neither is the existence of lacerations on
the victim's sexual organ indispensable. 35 What is essential is that there
be penetration of the sexual organ no matter how slight. 36

Under Article 335 of the Revised Penal Code, when the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion
perpetua to death. The trial court having found neither aggravating nor
mitigating circumstances attendant to the commission of the crime, the
proper penalty is reclusion perpetua. 37 And in conformity with
jurisprudence, the civil indemnity to be awarded to the offended party shall
be increased to Fifty Thousand Pesos (P50,000.00). 38
WHEREFORE, the Decision dated October 29, 1991 of the Regional Trial
Court of Iloilo, Sixth Judicial Region, Branch 25 in Criminal Case No. 31084
finding appellant Endriquito Reynaldo alias "Quito" guilty beyond
reasonable doubt of the crime of Rape is hereby AFFIRMED, with the sole
modification that the civil indemnity awarded the victim, Anacyl Barrera, is
increased to Fifty Thousand Pesos (P50,000.00).
SO ORDERED.

69
THIRD DIVISION
G.R. No. 88539 October 26, 1993
KUE CUISON, doing business under the firm name and style"KUE
CUISON PAPER SUPPLY," petitioner,
vs.
THE COURT OF APPEALS, VALIANT INVESTMENT ASSOCIATES,
respondents.
BIDIN, J.:
This petition for review assails the decision of the respondent Court of
Appeals ordering petitioner to pay private respondent, among others, the
sum of P297,482.30 with interest. Said decision reversed the appealed
decision of the trial court rendered in favor of petitioner.
The case involves an action for a sum of money filed by respondent against
petitioner anchored on the following antecedent facts:
Petitioner Kue Cuison is a sole proprietorship engaged in the purchase and
sale of newsprint, bond paper and scrap, with places of business at Baesa,
Quezon City, and Sto. Cristo, Binondo, Manila. Private respondent Valiant
Investment Associates, on the other hand, is a partnership duly organized
and existing under the laws of the Philippines with business address at
Kalookan City.
From December 4, 1979 to February 15, 1980, private respondent
delivered various kinds of paper products amounting to P297,487.30 to a
certain Lilian Tan of LT Trading. The deliveries were made by respondent
pursuant to orders allegedly placed by Tiu Huy Tiac who was then
employed in the Binondo office of petitioner. It was likewise pursuant to
Tiac's instructions that the merchandise was delivered to Lilian Tan. Upon
delivery, Lilian Tan paid for the merchandise by issuing several checks
payable to cash at the specific request of Tiu Huy Tiac. In turn, Tiac issued
nine (9) postdated checks to private respondent as payment for the paper
products. Unfortunately, sad checks were later dishonored by the drawee
bank.
Thereafter, private respondent made several demands upon petitioner to
pay for the merchandise in question, claiming that Tiu Huy Tiac was duly

authorized by petitioner as the manager of his Binondo office, to enter into

the questioned transactions with private respondent and Lilian Tan.
Petitioner denied any involvement in the transaction entered into by Tiu
Huy Tiac and refused to pay private respondent the amount corresponding
to the selling price of the subject merchandise.
Left with no recourse, private respondent filed an action against petitioner
for the collection of P297,487.30 representing the price of the
merchandise. After due hearing, the trial court dismissed the complaint
against petitioner for lack of merit. On appeal, however, the decision of the
trial court was modified, but was in effect reversed by the Court of
Appeals, the dispositive portion of which reads:
WHEREFORE, the decision appealed from is MODIFIED in that
defendant-appellant Kue Cuison is hereby ordered to pay plaintiffappellant Valiant Investment Associates the sum of P297,487.30
with 12% interest from the filing of the complaint until the amount
is fully paid, plus the sum of 7% of the total amount due as
attorney's fees, and to pay the costs. In all other respects, the
decision appealed from is affirmed. (Rollo, p. 55)
In this petition, petitioner contends that:
THE HONORABLE COURT ERRED IN FINDING TIU HUY TIAC AGENT
OF DEFENDANT-APPELLANT CONTRARY TO THE
UNDISPUTED/ESTABLISHED FACTS AND CIRCUMSTANCES.
THE HONORABLE COURT ERRED IN FINDING DEFENDANTAPPELLANT LIABLE FOR AN OBLIGATION UNDISPUTEDLY
BELONGING TO TIU HUY TIAC.
THE HONORABLE COURT ERRED IN REVERSING THE WELL-FOUNDED
DECISION OF THE TRIAL COURT, (Rollo, p, 19)
The issue here is really quite simple whether or not Tiu Huy Tiac
possessed the required authority from petitioner sufficient to hold the
latter liable for the disputed transaction.
This petition ought to have been denied outright, forin the final analysis, it
raises a factual issue. It is elementary that in petitions for review under
Rule 45, this Court only passes upon questions of law. An exception thereto

70
occurs where the findings of fact of the Court of Appeals are at variance
with the trial court, in which case the Court reviews the evidence in order
to arrive at the correct findings based on the records.
As to the merits of the case, it is a well-established rule that one who
clothes another with apparent authority as his agent and holds him out to
the public as such cannot be permitted to deny the authority of such
person to act as his agent, to the prejudice of innocent third parties dealing
with such person in good faith and in the honest belief that he is what he
appears to be (Macke, et al, v. Camps, 7 Phil. 553 (1907]; Philippine
National Bank. v Court of Appeals, 94 SCRA 357 [1979]). From the facts
and the evidence on record, there is no doubt that this rule obtains. The
petition must therefore fail.
It is evident from the records that by his own acts and admission,
petitioner held out Tiu Huy Tiac to the public as the manager of his store in
Sto. Cristo, Binondo, Manila. More particularly, petitioner explicitly
introduced Tiu Huy Tiac to Bernardino Villanueva, respondent's manager,
as his (petitioner's) branch manager as testified to by Bernardino
Villanueva. Secondly, Lilian Tan, who has been doing business with
petitioner for quite a while, also testified that she knew Tiu Huy Tiac to be
the manager of petitioner's Sto. Cristo, Binondo branch. This general
perception of Tiu Huy Tiac as the manager of petitioner's Sto. Cristo store
is even made manifest by the fact that Tiu Huy Tiac is known in the
community to be the "kinakapatid" (godbrother) of petitioner. In fact, even
petitioner admitted his close relationship with Tiu Huy Tiac when he said
that they are "like brothers" (Rollo, p. 54). There was thus no reason for
anybody especially those transacting business with petitioner to even
doubt the authority of Tiu Huy Tiac as his manager in the Sto. Cristo
Binondo branch.
In a futile attempt to discredit Villanueva, petitioner alleges that the
former's testimony is clearly self-serving inasmuch as Villanueva worked
for private respondent as its manager.
We disagree, The argument that Villanueva's testimony is self-serving and
therefore inadmissible on the lame excuse of his employment with private
respondent utterly misconstrues the nature of "'self-serving evidence" and
the specific ground for its exclusion. As pointed out by this Court in Co v.
Court of Appeals et, al., (99 SCRA 321 [1980]):

Self-serving evidence is evidence made by a party out of court at

one time; it does not include a party's testimony as a witness in
court. It is excluded on the same ground as any hearsay evidence,
that is the lack of opportunity for cross-examination by the adverse
party, and on the consideration that its admission would open the
door to fraud and to fabrication of testimony. On theother hand, a
party's testimony in court is sworn and affords the other party the
opportunity for cross-examination (emphasis supplied)
Petitioner cites Villanueva's failure, despite his commitment to do so on
cross-examination, to produce the very first invoice of the transaction
between petitioner and private respondent as another ground to discredit
Villanueva's testimony. Such failure, proves that Villanueva was not only
bluffing when he pretended that he can produce the invoice, but that
Villanueva was likewise prevaricating when he insisted that such prior
transactions actually took place. Petitioner is mistaken. In fact, it was
petitioner's counsel himself who withdrew the reservation to have
Villanueva produce the document in court. As aptly observed by the Court
of Appeals in its decision:
. . . However, during the hearing on March 3, 1981, Villanueva
failed to present the document adverted to because defendantappellant's counsel withdrew his reservation to have the former
(Villanueva) produce the document or invoice, thus prompting
plaintiff-appellant to rest its case that same day (t.s.n., pp. 39-40,
Sess. of March 3, 1981). Now, defendant-appellant assails the
credibility of Villanueva for having allegedly failed to produce even
one single document to show that plaintiff-appellant have had
transactions before, when in fact said failure of Villanueva to
produce said document is a direct off-shoot of the action of
defendant-appellant's counsel who withdrew his reservation for the
production of the document or invoice and which led plaintiffappellant to rest its case that very day. (Rollo, p.52)
In the same manner, petitioner assails the credibility of Lilian Tan by
alleging that Tan was part of an intricate plot to defraud him. However,
petitioner failed to substantiate or prove that the subject transaction was
designed to defraud him. Ironically, it was even the testimony of
petitioner's daughter and assistant manager Imelda Kue Cuison which
confirmed the credibility of Tan as a witness. On the witness stand, Imelda
testified that she knew for a fact that prior to the transaction in question,
Tan regularly transacted business with her father (petitioner herein),

71
thereby corroborating Tan's testimony to the same effect. As correctly
found by the respondent court, there was no logical explanation for Tan to
impute liability upon petitioner. Rather, the testimony of Imelda Kue Cuison
only served to add credence to Tan's testimony as regards the transaction,
the liability for which petitioner wishes to be absolved.
But of even greater weight than any of these testimonies, is petitioner's
categorical admission on the witness stand that Tiu Huy Tiac was the
manager of his store in Sto. Cristo, Binondo, to wit:
Court:
Q And who was managing the store in Sto. Cristo?
A At first it was Mr. Ang, then later Mr. Tiu Huy Tiac but I cannot remember
the exact year.
Q So, Mr. Tiu Huy Tiac took over the management,.
A Not that was because every afternoon, I was there, sir.
Q But in the morning, who takes charge?
A Tiu Huy Tiac takes charge of management and if there (sic) orders for
newsprint or bond papers they are always referred to the compound in
Baesa, sir. (t.s.n., p. 16, Session of January 20, 1981, CA decision, Rollo, p.
50, emphasis supplied).
Such admission, spontaneous no doubt, and standing alone, is sufficient to
negate all the denials made by petitioner regarding the capacity of Tiu Huy
Tiac to enter into the transaction in question. Furthermore, consistent with
and as an obvious indication of the fact that Tiu Huy Tiac was the manager
of the Sto. Cristo branch, three (3) months after Tiu Huy Tiac left
petitioner's employ, petitioner even sent, communications to its customers
notifying them that Tiu Huy Tiac is no longer connected with petitioner's
business. Such undertaking spoke unmistakenly of Tiu Huy Tiac's valuable
position as petitioner's manager than any uttered disclaimer. More than
anything else, this act taken together with the declaration of petitioner in
open court amount to admissions under Rule 130 Section 22 of the Rules of
Court, to wit : "The act, declaration or omission of a party as to a relevant
fact may be given in evidence against him." For well-settled is the rule that

"a man's acts, conduct, and declaration, wherever made, if voluntary, are
admissible against him, for the reason that it is fair to presume that they
correspond with the truth, and it is his fault if they do not. If a man's
extrajudicial admissions are admissible against him, there seems to be no
reason why his admissions made in open court, under oath, should not be
accepted against him." (U.S. vs. Ching Po, 23 Phil. 578, 583 [1912];).
Moreover, petitioner's unexplained delay in disowning the transactions
entered into by Tiu Huy Tiac despite several attempts made by respondent
to collect the amount from him, proved all the more that petitioner was
aware of the questioned commission was tantamount to an admission by
silence under Rule 130 Section 23 of the Rules of Court, thus: "Any act or
declaration made in the presence of and within the observation of a party
who does or says nothing when the act or declaration is such as naturally
to call for action or comment if not true, may be given in evidence against
him."
All of these point to the fact that at the time of the transaction Tiu Huy Tiac
was admittedly the manager of petitioner's store in Sto. Cristo, Binondo.
Consequently, the transaction in question as well as the concomitant
obligation is valid and binding upon petitioner.
By his representations, petitioner is now estopped from disclaiming liability
for the transaction entered by Tiu Huy Tiac on his behalf. It matters not
whether the representations are intentional or merely negligent so long as
innocent, third persons relied upon such representations in good faith and
for value As held in the case of Manila Remnant Co. Inc. v. Court of
Appeals, (191 SCRA 622 [1990]):
More in point, we find that by the principle of estoppel, Manila Remnant is
deemed to have allowed its agent to act as though it had plenary powers.
Article 1911 of the Civil Code provides:
"Even when the agent has exceeded his authority, the principal
issolidarily liable with the agent if the former allowed the latter to
act as though he had full powers." (Emphasis supplied).
The above-quoted article is new. It is intended to protect the rights of
innocent persons. In such a situation, both the principal and the agent may
be considered as joint tortfeasors whose liability is joint and solidary.

72
Authority by estoppel has arisen in the instant case because by its
negligence, the principal, Manila Remnant, has permitted its agent, A.U.
Valencia and Co., to exercise powers not granted to it. That the principal
might not have had actual knowledge of theagent's misdeed is of no
moment.
Tiu Huy Tiac, therefore, by petitioner's own representations and
manifestations, became an agent of petitioner by estoppel, an admission
or representation is rendered conclusive upon the person making it, and
cannot be denied or disproved as against the person relying thereon
(Article 1431, Civil Code of the Philippines). A party cannot be allowed to
go back on his own acts and representations to the prejudice of the other
party who, in good faith, relied upon them (Philippine National Bank v.
Intermediate Appellate Court, et al., 189 SCRA 680 [1990]).
Taken in this light,. petitioner is liable for the transaction entered into by
Tiu Huy Tiac on his behalf. Thus, even when the agent has exceeded his
authority, the principal is solidarily liable with the agent if the former
allowed the latter to fact as though he had full powers (Article 1911 Civil
Code), as in the case at bar.
Finally, although it may appear that Tiu Huy Tiac defrauded his principal
(petitioner) in not turning over the proceeds of the transaction to the latter,
such fact cannot in any way relieve nor exonerate petitioner of his liability
to private respondent. For it is an equitable maxim that as between two
innocent parties, the one who made it possible for the wrong to be done
should be the one to bear the resulting loss (Francisco vs. Government
Service Insurance System, 7 SCRA 577 [1963]).
Inasmuch as the fundamental issue of the capacity or incapacity of the
purported agent Tiu Huy Tiac, has already been resolved, the Court deems
it unnecessary to resolve the other peripheral issues raised by petitioner.
WHEREFORE, the instant petition in hereby DENIED for lack of merit. Costs
against petitioner.
SO ORDERED.
FACTS:

Kue Cuison is a sole proprietorship engaged in the purchase and sale of

newsprint, bond paper and scrap.
Valiant Investment Associates delivered various kinds of paper products to
a certain Tan. The deliveries were made by Valiant pursuant to orders
allegedly placed by Tiac who was then employed in the Binondo office of
petitioner. Upon delivery, Tan paid for the merchandise by issuing several
checks payable to cash at the specific request of Tiac. In turn, Tiac issued
nine (9) postdated checks to Valiant as payment for the paper products.
Unfortunately, sad checks were later dishonored by the drawee bank.
Thereafter, Valiant made several demands upon petitioner to pay for the
merchandise in question, claiming that Tiac was duly authorized by
petitioner as the manager of his Binondo office, to enter into the
questioned transactions with Valiant and Tan. Petitioner denied any
involvement in the transaction entered into by Tiac and refused to pay
Valiant.

Left with no recourse, private respondent filed an action against petitioner

for the collection of sum of money representing the price of the
merchandise. After due hearing, the trial court dismissed the complaint
against petitioner for lack of merit. On appeal, however, the decision of the
trial court was modified, but was in effect reversed by the CA. CA ordered
petitioner to pay Valiant with the sum plus interest, AF and costs.
ISSUE: WON Tiac possessed the required authority from petitioner
sufficient to hold the latter liable for the disputed transaction
HELD:
YES. As to the merits of the case, it is a well-established rule that one who
clothes another with apparent authority as his agent and holds him out to
the public as such cannot be permitted to deny the authority of such
person to act as his agent, to the prejudice of innocent third parties dealing
with such person in good faith and in the honest belief that he is what he
appears to be It matters not whether the representations are intentional or
merely negligent so long as innocent, third persons relied upon such
representations in good faith and for value. Article 1911 of the Civil Code
provides:

73
Even when the agent has exceeded his authority, the principal is solidarily
liable with the agent if the former allowed the latter to act as though he
had full powers.
The above-quoted article is new. It is intended to protect the rights of
innocent persons. In such a situation, both the principal and the agent may
be considered as joint tortfeasors whose liability is joint and solidary.
It is evident from the records that by his own acts and admission,
petitioner held out Tiac to the public as the manager of his store in
Binondo. More particularly, petitioner explicitly introduced to Villanueva,
Valiants manager, as his (petitioners) branch manager as testified to by
Villanueva. Secondly, Tan, who has been doing business with petitioner for
quite a while, also testified that she knew Tiac to be the manager of the
Binondo branch. Even petitioner admitted his close relationship with Tiu
Huy Tiac when he said that they are like brothers There was thus no
reason for anybody especially those transacting business with petitioner to
even doubt the authority of Tiac as his manager in the Binondo branch.

Tiac, therefore, by petitioners own representations and manifestations,

became an agent of petitioner by estoppel, an admission or representation
is rendered conclusive upon the person making it, and cannot be denied or
disproved as against the person relying thereon (Article 1431, Civil Code of
the Philippines). A party cannot be allowed to go back on his own acts and
representations to the prejudice of the other party who, in good faith,
relied upon them. Taken in this light,. petitioner is liable for the transaction
entered into by Tiac on his behalf. Thus, even when the agent has
exceeded his authority, the principal is solidarily liable with the agent if the
former allowed the latter to fact as though he had full powers (Article 1911
Civil Code), as in the case at bar.
Finally, although it may appear that Tiac defrauded his principal
(petitioner) in not turning over the proceeds of the transaction to the latter,
such fact cannot in any way relieve nor exonerate petitioner of his liability
to private respondent. For it is an equitable maxim that as between two
innocent parties, the one who made it possible for the wrong to be done
should be the one to bear the resulting loss.

74
FIRST DIVISION
G.R. No. 155080

February 5, 2004

SOLEDAD CALICDAN, represented by her guardian GUADALUPE

CASTILLO, petitioner
vs.
SILVERiO CENDAA, substituted by his legal heir CELSA CENDAAALARAS, respondent.
DECISION
YNARES-SANTIAGO, J.:
This petition for review seeks the reversal of the April 4, 2002 decision of
the Court of Appeals in CA-G.R. CV No. 67266,1 which set aside the
November 12, 1996 decision of the Regional Trial Court of Dagupan City,
Branch 44 in Civil Case No. D-10270.2
The instant controversy involves a 760 square meter parcel of unregistered
land located in Poblacion, Mangaldan, Pangasinan. The land was formerly
owned by Sixto Calicdan, who died intestate on November 4, 1941. He was
survived by his wife, Fermina, and three children, namely, petitioner
Soledad, Jose and Benigno, all surnamed Calicdan. 3
On August 25, 1947, Fermina executed a deed of donation inter vivos
whereby she conveyed the land to respondent Silverio Cendaa, 4 who
immediately entered into possession of the land, built a fence around the
land and constructed a two-storey residential house thereon sometime in
1949, where he resided until his death in 1998. 5
On June 29, 1992, petitioner, through her legal guardian Guadalupe
Castillo, filed a complaint for "Recovery of Ownership, Possession and
Damages" against the respondent, alleging that the donation was void;
that respondent took advantage of her incompetence in acquiring the land;
and that she merely tolerated respondents possession of the land as well
as the construction of his house thereon.6
In his "Answer with Motion to Dismiss", respondent alleged, by way of
affirmative defenses, that the land was donated to him by Fermina in 1947;
and that he had been publicly, peacefully, continuously, and adversely in

possession of the land for a period of 45 years. Moreover, he argued that

the complaint was barred by prior judgment in the special proceedings for
the "Inventory of Properties of Incompetent Soledad Calicdan", where the
court decreed the exclusion of the land from the inventory of properties of
the petitioner.7
On November 12, 1996, the trial court rendered a decision in favor of the
petitioner, the dispositive portion of which reads as follows:
WHEREFORE, judgment is rendered in favor of plaintiff and against the
defendant as follows:
1. Ordering defendant Silverio Cendaa to vacate the land in
question and surrender ownership and possession of the same to
plaintiff; and
2. Ordering defendant to pay plaintiff P20,000.00 as moral
damages, P20,000.00 as exemplary damages, P10,000.00 by way
of attorneys fees and other litigation expenses, plus cost of suit.
SO ORDERED.8
On appeal by the respondent, the Court of Appeals reversed the trial
courts decision and declared that the donation was valid. Furthermore, it
held that petitioner lost her ownership of the property by prescription.
Hence, the instant petition for review on the following issues:
(1) whether or not the donation inter vivos is valid; and
(2) whether or not petitioner lost ownership of the land by
prescription.
As a rule, our jurisdiction in cases brought from the Court of Appeals is
limited to the review and revision of errors of law allegedly committed by
the appellate court. This is because its findings of fact are deemed
conclusive and we are not duty-bound to analyze and weigh all over again
the evidence already considered in the proceedings below. 9
The rule, however, admits of the following exceptions:

75
(1) when the findings are grounded on speculation, surmises or
conjectures;
(2) when the inference made is manifestly mistaken, absurd or
impossible;
(3) when there is grave abuse of discretion in the appreciation of
facts;
(4) when the factual findings of the trial and appellate courts are
conflicting;

After a review of the evidence on record, we find that the Court of Appeals
ruling that the donation was valid was not supported by convincing proof.
Respondent himself admitted during the cross examination that he had no
personal knowledge of whether Sixto Calicdan in fact purchased the
subject land from Felomino Bautista. Pertinent portions of his testimony
read:
Q. And Sixto Calicdan inherited this property from his parents?
A. No, sir.
Q. What do you mean by no?

(5) when the Court of Appeals, in making its findings, has gone
beyond the issues of the case and such findings are contrary to the
admissions of both appellant and appellee;

A. To my knowledge and information, Sixto Calicdan bought the

property from his cousin, I think Flaviano or Felomino Bautista.

(6) when the judgment of the appellate court is premised on a

misapprehension of facts or when it has failed to consider certain
relevant facts which, if properly taken into account, will justify a
different conclusion;

Q. So, in other words, you have no personal knowledge about how

Sixto Calicdan acquired this property?

(7) when the findings of fact are conclusions without citation of

specific evidence upon which they are based; and

Q. According to information, so you have no actual personal

knowledge how Sixto Calicadan acquired this property?

(8) when findings of fact of the Court of Appeals are premised on

the absence of evidence but are contradicted by the evidence on
record.10

A. Yes, because when the property was bought by my uncle, I was

not yet born, so information only.

In the case at bar, the factual findings of the trial court and the Court of
Appeals are conflicting; thus, we are constrained to review the findings of
facts.
The trial court found the donation of the land void because Fermina was
not the owner thereof, considering that it was inherited by Sixto from his
parents. Thus, the land was not part of the conjugal property of the
spouses Sixto and Fermina Calicdan, because under the Spanish Civil Code,
the law applicable when Sixto died in 1941, the surviving spouse had a
right of usufruct only over the estate of the deceased spouse.
Consequently, respondent, who derived his rights from Fermina, only
acquired the right of usufruct as it was the only right which the latter could
convey.

A. I think it was by purchase.

Q. So when you were born, you came to know already that Sixto
Calicdan is the owner of this property?
A. Yes, thru the son of Felomino Bautista who is now, I think, in
Baguio.
Q. You have not seen any document to show that Sixto Calicdan
purchased the property from one Felomino Bautista?
A. None, sir.11
In People v. Guittap,12 we held that:

76
Under Rule 130, Section 36 of the Rules of Court, a witness can testify only
to those facts which he knows of his own personal knowledge, i.e., which
are derived from his own perception; otherwise, such testimony would be
hearsay. Hearsay evidence is defined as "evidence not of what the witness
knows himself but of what he has heard from others." The hearsay rule
bars the testimony of a witness who merely recites what someone else has
told him, whether orally or in writing. In Sanvicente v. People, we held that
when evidence is based on what was supposedly told the witness, the
same is without any evidentiary weight for being patently hearsay. Familiar
and fundamental is the rule that hearsay testimony is inadmissible as
evidence.
The Court of Appeals thus erred in ruling based on respondents bare
hearsay testimony as evidence of the donation made by Fermina.
Notwithstanding the invalidity of the donation, we find that respondent has
become the rightful owner of the land by extraordinary acquisitive
prescription.
Prescription is another mode of acquiring ownership and other real rights
over immovable property. It is concerned with lapse of time in the manner
and under conditions laid down by law, namely, that the possession should
be in the concept of an owner, public, peaceful, uninterrupted and adverse.
Acquisitive prescription is either ordinary or extraordinary. Ordinary
acquisitive prescription requires possession in good faith and with just title
for ten years. In extraordinary prescription ownership and other real rights
over immovable property are acquired through uninterrupted adverse
possession thereof for thirty years without need of title or of good faith. 13
The good faith of the possessor consists in the reasonable belief that the
person from whom he received the thing was the owner thereof, and could
transmit his ownership.14 For purposes of prescription, there is just title
when the adverse claimant came into possession of the property through
one of the modes recognized by law for the acquisition of ownership or
other real rights, but the grantor was not the owner or could not transmit
any right.15

Assuming arguendo that ordinary acquisitive prescription is unavailing in

the case at bar as it demands that the possession be "in good faith and
with just title,"16 and there is no evidence on record to prove respondents
"good faith", nevertheless, his adverse possession of the land for more
than 45 years aptly shows that he has met the requirements for
extraordinary acquisitive prescription to set in.
The records show that the subject land is an unregistered land. When the
petitioner filed the instant case on June 29, 1992, respondent was in
possession of the land for 45 years counted from the time of the donation
in 1947. This is more than the required 30 years of uninterrupted adverse
possession without just title and good faith. Such possession was public,
adverse and in the concept of an owner. Respondent fenced the land and
built his house in 1949, with the help of Guadalupes father as his
contractor. His act of cultivating and reaping the fruits of the land was
manifest and visible to all. He declared the land for taxation purposes and
religiously paid the realty taxes thereon.17 Together with his actual
possession of the land, these tax declarations constitute strong evidence of
ownership of the land occupied by him. As we said in the case of Heirs of
Simplicio Santiago v. Heirs of Mariano Santiago:18
Although tax declarations or realty tax payment of property are not
conclusive evidence of ownership, nevertheless, they are good indicia of
possession in the concept of owner, for no one in his right mind would be
paying taxes for a property that is not in his actual or constructive
possession. They constitute at least proof that the holder has a claim of
title over the property. The voluntary declaration of a piece of property for
taxation purposes manifests not only ones sincere and honest desire to
obtain title to the property and announces his adverse claim against the
State and all other interested parties, but also the intention to contribute
needed revenues to the Government. Such an act strengthens ones bona
fide claim of acquisition of ownership.
Moreover, the deed of donation inter vivos, albeit void for having been
executed by one who was not the owner of the property donated, may still
be used to show the exclusive and adverse character of respondents
possession. Thus, in Heirs of Segunda Maningding v. Court of Appeals,19 we
held:
Even assuming that the donation propter nuptias is void for failure to
comply with formal requisites, it could still constitute a legal basis for
adverse possession. With clear and convincing evidence of possession, a

77
private document of donation may serve as basis for a claim of ownership.
In Pensader v. Pensader we ruled that while the verbal donation under
which the defendant and his predecessors-in-interest have been in
possession of the lands in question is not effective as a transfer of title, still
it is a circumstance which may explain the adverse and exclusive character
of the possession. (Underscoring ours)

RTC ruled in favor of petitioner. On Appeal, the CA reversed the RTCs

decision holding that the donation was valid.

In sum, the Court of Appeals correctly ordered the dismissal of Civil Case
No. D-10270 before the Regional Trial Court of Dagupan City, Branch 44,
and declared respondent the rightful owner of the subject property, not on
the basis of the Deed of Donation Inter Vivos, which is hereby declared
void, but on extraordinary acquisitive prescription.

NO. As correctly held by the the trial court, the donation of the land was
void because Fermina was not the owner thereof, considering that it was
inherited by Sixto from his parents. Thus, the land was not part of the
conjugal property of the spouses Sixto and Fermina Calicdan, because
under the Spanish Civil Code, the law applicable when Sixto died in 1941,
the surviving spouse had a right of usufruct only over the estate of the
deceased spouse.

WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision

of the Court of Appeals dated April 4, 2002 in CA-G.R. CV No. 67266, which
ordered the dismissal of Civil Case No. D-10270 before the Regional Trial
Court of Dagupan City, Branch 44, is AFFIRMED.
SO ORDERED
FACTS:
The land in question was formerly owned by Sixto Calicdan, who died
intestate and was survived by his wife, Fermina, and three children,
namely, petitioner Soledad, Jose and Benigno, all surnamed Calicdan.
Fermina executed a deed of donation inter vivos whereby she conveyed
the land to respondent Silverio Cendaa, who immediately entered into
possession of the land, built a fence around the land and constructed a
two-storey residential house thereon, where he resided until his death.
Petitioner, through her legal guardian Guadalupe Castillo, filed a complaint
for Recovery of Ownership, Possession and Damages against the
respondent, alleging that the donation was void; that respondent took
advantage of her incompetence in acquiring the land; and that she merely
tolerated respondents possession of the land as well as the construction of
his house thereon.
Respondent alleged, by way of affirmative defenses, that the land was
donated to him by Fermina; and that he had been publicly, peacefully,
continuously, and adversely in possession of the land for a period of 45
years.

ISSUE: Whether the donation in favor of respondent was valid?

HELD:

However, notwithstanding the invalidity of the donation, the Court found

that respondent has become the rightful owner of the land by
extraordinary acquisitive prescription.

78
THIRD DIVISION
[G.R. No. 127573. May 12, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE
SILVESTRE y CRUZ, accused-appellant.
DECISION
GONZAGA-REYES, J.:

This is an appeal from the decision[1] of the Regional Trial Court (RTC) of
Malabon, Branch 72, dated August 7, 1996, finding the accusedappellant
Jose Silvestre y Cruz alias Jojo Bungo guilty beyond reasonable doubt of the
crime of murder in Criminal Case No. 16579-MN.
The accused, Jose Silvestre y Cruz alias Jojo Bungo, was charged with the
crime of murder in an information[2] that reads:
That on or about the 18th day of January, 1996, in the Municipality of
Malabon, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, and with
treachery and evident premeditation while armed with a gun, did then and
there, willfully, unlawfully and feloniously shoot one LUISITO PALENCIA y
TOBIAS hitting him four (4) times on the different parts of his body, as a
consequence said LUISITO PALENCIA y TOBIAS, sustained injuries which
directly caused his death.
On April 24, 1996, accused-appellant was arraigned whereupon he entered
a plea of not guilty to the crime charged.[3]
The prosecution presented three witnesses: the victims widow, Marina
Palencia; an eyewitness to the shooting, Felicitas Torres; and the arresting
officer, SPO2 Benjamin Querubin.
Marina Palencia testified that she was the widow of the victim, Luisito
Palencia; that they have three children: Harry, 18; Regine, 16; and
Carmille, 11; and that when he was alive, he was employed as an installer
and repairman of P.L.D.T. earning P14,877.00 a month. As a consequence
of the death of her husband, she had incurred actual expenses in the
amount of P66,500.00.[4] Felicitas Torres testified that on 11:45 a.m. of
January 18, 1996, she bought bread from the Concepcion Bakery in

Malabon, Metro Manila. While waiting for a ride in front of the said bakery,
she observed a man and a woman talking with each other. She then heard
two shots fired. When she turned her head, she saw a man on the ground
face down and beside him, a man holding a gun. She sought cover for a
short while, then saw the man with a gun fire two more times at the fallen
man. She boarded a jeep after the last two shots were fired. While
boarding, she heard someone say binaril na ni Jojo si Palencia.
On February 5, 1996, she went to the branch office of P.L.D.T. in Malabon to
pay for the telephone bill of her employer. While there, she overheard that
no one was willing to testify about the shooting. She informed one of the
employees that she was a witness to the incident, and was brought to the
manager who asked her to testify as one of the witnesses in the case. On
the same day, she was accompanied by a certain Jun, an employee of the
P.L.D.T., to the police station to give her statement.
At the police station, she identified the only person presented to her for
purposes of identification as the assailant. She was later informed that this
person was Jojo Bungo. In court, Torres also identified the accused Jojo
Bungo, whose real name is Jose Silvestre, as the assailant.[5]
The parties dispensed with the presentation of Dr. Alberto Bondoc by
making admissions concerning the manner and nature of his testimony, to
wit:
1. that he is duly qualified and competent as a physician and medico-legal
officer who had conducted an autopsy examination;
2. that he conducted the actual autopsy on the cadaver of the victim in this
case by the name of Luisito Palencia to be marked as Exhibit B;
3. that in the course of the autopsy examination the witness prepared a
sketch of the human body showing the locations and number of gunshot
wounds sustained by the victim marked as Exhibit C;
4. that in the course of its examination he extracted a slug embedded on
the said victim which cannot be traced to any gun because there was no
ballistic examination; and,
5. that the final report containing the findings and conclusions particularly
with respect to the fact and cause of death was prepared, thereby
dispensing with the actual presentation of Dr. Bondoc as a prosecution
witness.[6]

79
The prosecutions last witness was SPO2 Benjamin Querubin who testified
that on February 5, 1996, Jojo Bungo was arrested outside his residence at
Bagong Bantay, Quezon City after a six-hour stakeout. At the time of
arrest, a .38 snub nose paltik revolver was recovered from Silvestre after
he was frisked. He also identified Jojo Bungo in court.

The prosecution objected to the purpose for which the exhibit was offered
since the affidavit was not presented for identification; and the Court
admitted it only as proof of its existence and contents.

On cross-examination, Querubin testified that there was a witness who

gave her statement regarding the crime committed on January 18, 1996
but that she did not cooperate and even failed to subscribe to her
statement.[7]

WHEREFORE, premises considered, judgment is hereby rendered finding

accused Jose Silvestre y Cruz @ Jojo Bungo GUILTY beyond reasonable
doubt of the crime of murder and he is hereby accordingly sentenced to
the prison term of reclusion perpetua.

The defense presented SPO2 Angelito Balacaa, the investigating officer,

who testified[8] that he was the officer who took the statement of Felicitas
Torres. On cross-examination, he stated that there was no line-up made
when Torres identified the accused because when Torres statement was
taken, she readily mentioned the name of the suspect. When he presented
the suspect to Felicitas, the latter identified him as the one who shot
Luisito Palencia.

Accused Silvestre is also ordered to pay Mrs. Marina Palencia, the following
amounts: (1) P66,500.00 for the actual expenses spent in connection with
the death and burial of Luisito; (2) P50,000.00 for the loss of Luisitos life;
(3) P100,000.00 by way of moral damages for the pain and anguish
suffered by the victims family due to the untimely death of Luisito and an
additional amount equivalent to three (3) years salary computed at the
rate of P14,877.00 a month corresponding to Luisitos monthly salary by
way of lost income.

The defense next called SPO1 Crizaldo Castillo who did not appear despite
his being subpoenaed. Castillo was supposed to testify on a statement
made by a certain Bernadette Matias, a witness to the shooting, who was
not presented at the trial. His testimony was dispensed with when the
prosecution admitted the existence and the contents of her written
statement after the Court persuaded both parties to stipulate on his
testimony.[9]
The defense rested its case and made its offer of evidence as follows:
I will no longer present the accused. I am offering Exh. 1, 1-A and 1-A-1 a
statement taken by SPO1 Castillo immediately after the incident took the
statement of witness Bernadette Matias on 18 of January, 1996 at 1:00
oclock in the afternoon and in that affidavit statement the witness stated
that the suspect that she does know the name of the suspect and he is 55
between 120 to 130 ang bigat and kulot ang mabuhok, maiksi ang buhok,
brushed up, likewise Exh. 1-A-1 the word kayumanggi on Question No. 7
answer of the witness is to prove the person whom the eyewitness saw
who shot the victim was a kayumanggi likewise offering this affidavit as
part of his testimony of the witness.[10]

On August 7, 1996, the Regional Trial Court rendered its decision finding
the accused guilty beyond reasonable doubt of the crime of murder. The
dispositive portion of the decision reads:

Costs against accused Silvestre.

SO ORDERED.
Malabon, Metro Manila, August 7, 1996.[11]
Hence, this appeal where accused assigns the following errors:
I. THE GUILT OF THE ACCUSED WAS NOT ESTABLISHED BY PROOF BEYOND
REASONABLE DOUBT OR PROSECUTION EVIDENCE HAS NOT OVER-COME
ACCUSED CONSTITUTIONAL PRESUMPTION OF INNOCENCE.
II. THE COURT A QUO ERRED WHEN IT CONVICTED THE ACCUSED SOLELY
BASED ON THE LONE TESTIMONY OF PROSECUTIONS PRINCIPAL WITNESS
WHO IS NOT CREDIBLE AND POSITIVE.
III. THE COURT A QUO GRAVELY ERRED IN TREATING JUDICIAL ADMISSION
OF THE PARTIES AS HEARSAY IN CHARACTER.
IV. THE COURT A QUO ERRED IN APPRECIATING EVIDENT PREMEDITATION
AND TREACHERY FOR WANT OF EVIDENCE.

80
THE COURT A QUO ERRED IN SENTENCING ACCUSED OF A PRISON TERM
OF RECLUSION PERPETUA.
VI. THE COURT A QUO ERRED IN ORDERING PAYMENT OF ACTUAL, MORAL
DAMAGES, LOST OF INCOME ABSENCE OF PROOF IN SUPPORT THEREOF OR
FORMALLY OFFERED IN EVIDENCE.[12]
The accused-appellant argues that the lower court erred in finding the
accused guilty beyond reasonable doubt on the basis of the lone testimony
of Felicitas Torres. According to the accused-appellant, Torres testified that
she did not actually witness the accused shooting the victim because she
merely heard two shots fired and sought cover for a short while, and hence
it was doubtful whether she saw the man with a gun shooting at the fallen
man two more times. As it was a startling or frightful experience for a
woman, it was not probable that she was brave enough to witness the
shooting which was merely five arms length away from her; and that the
prosecution witness merely speculated on the identity of the perpetrator
from what she heard i.e., binaril na ni Jojo si Palencia.[13]
Moreover, accused-appellant claims that there was an inconsistency
between the sworn statement of Torres and her testimony in Court. In her
sworn statement, she had stated that xxx nakita ko ang isang lalaki na
natumba at isa pang lalaki na nakatayo sa harapan noong natumba
xxx[14] while in her direct testimony, she testified that: xxx I saw a man
slumped head face down xxx besides that man slumped on the ground a
man with a gun.[15] He also avers that the identification made by Torres
was not positive and was a suggested identification since no police line-up
was conducted when she identified him at the police station.[16]
In addition, appellant argues that the lower court erred in treating the
statement of Bernadette Matias as hearsay despite the fact that the
prosecution admitted the existence and contents of her statement. He
claims that he vigorously tried to secure subpoenas ad testificandum for
the witnesses, Bernadette Matias and SPO1 Crizaldo Castillo but the trial
court opted instead to have the parties stipulate on their testimonies. It is
alleged that the trial courts insistence that the parties stipulate on Matias
declaration led him to believe that it was not necessary to present her to
testify under oath as the contents thereof were already admitted.
Lastly, the accused-appellant contends that the lower court erred in
appreciating the qualifying circumstances of treachery and evident
premeditation, and in the absence of these circumstances, the crime is not
murder but simple homicide. He finally argues that the lower court erred in

awarding actual and moral damages despite the absence of proof of the
factual basis therefor, and despite the absence of a formal offer of
evidence.
The appellee, on the other hand, posits that the guilt of the accused has
been proven beyond reasonable doubt.
First, Felicitas Torres positively identified the accused as the man who shot
Luisito Palencia as she had witnessed the shooting in broad daylight, while
she was merely five (5) arms length away from the accused.
Second, Felicitas testimony is consistent with the findings of the autopsy
report which shows that the victim sustained four (4) gunshot wounds.
Third, the defense did not show any improper motive on the part of Torres
to falsely impute the murder against the appellant. It was not shown that
she knew the victims family nor the accused prior to the incident.
Fourth, as regards the alleged contradictory statements of Felicitas, the
prosecution argues that from the viewpoint of a stunned witness, the
appellant could well be standing beside or in front of the victim. Assuming
her statements were in fact inconsistent, such inconsistency pertains to a
trivial matter as there was no inconsistency with respect to the fact of the
shooting.
The appellee also argues that there is no law requiring a police line-up as a
requisite for proper identification. Moreover, accused was not entitled to
have counsel present at the time he was identified since he was not
subjected to any investigation or interrogation.[17]
As regards the affidavit of Bernadette Matias, the same is hearsay as she
was not presented as witness. Finally, the appellee contends that the
presence of treachery as shown by the sudden and unexpected assault
upon the defenseless victim qualified the crime to murder.
The first issue to be resolved is whether Felicitas Torres, the lone witness to
the killing was a credible witness. We have carefully gone over the records
and find nothing in her account of the events that shows that her
testimony suffers from incredibility. Felicitas Torres testified as follows:
DIRECT EXAMINATION BY FISCAL ACUA:
Q. Now, at 11:45 in the morning of January 18, 1996, do you remember
where you were?

81
A. I was then near Concepcion Bakery.

A. And then I saw a man slumped head face down.

Q. Will you please tell us in what municipality is this Concepcion Bakery

located?

Q. What else did you see?

A. Malabon, Metro Manila.

Q. Now, what were you doing at that time?
A. Buying bread, sir.
Q. Were you able to buy bread?
A. Yes, sir.

A. Then I saw besides that man slumped on the ground a man with a gun.
Q. What then did you do if any after that?
A. I sought cover for a short while.
Q. What happened after seeking cover?
A. Then I saw that man with a gun shot the man two times more.

Q. After buying bread what did you do, if any?

Q. Now who was this man whom you saw fired twice more the man who
was slumped face down.

A. I waited for a tricycle to go home.

A. I do not know him personally but I recognized him.

Q. And you said you were waiting for a tricycle in going home when you
said going home you are referring to Hulo, Malabon?

Q. Now, if you see this man were you be able to identify him?

A. Yes, sir.

Q. While you were waiting what happened while you were waiting for a
ride?
A. I noticed something, sir.
Q. What was that you noticed?

A. Yes, sir.
Q. Now, look around and point him to us if he is inside the Court room?
A. Witness pointing to the person, step down and approached the person
whom she pointed to and when asked to stand and asked his name, he
answered Jose Silvestre.
Q. Now, after firing two more shots at the man whom you saw pasubsob,
what then did the accused do if any?

A. I noticed a man and a woman talking with each other.

A. I do not know anymore because I boarded a jeep after he fired the last
two shots.

Q. How far were you more or less from this man and woman who was
conversing with each other?

Q. Now, while you were boarding that vehicle that you take home did you
hear anything on that occasion?

A. More or less five arms length.

A. There was a commotion and then I heard binaril na ni Jojo si Palencia.

Q. Now, what happened after that, if any?

Q. When did you come to know the complete name of Palencia?

A. I heard two shots then I turned my head.

A. When I went to PLDT office.

Q. Now, when you turned your head after hearing two shots, what did you
see if any?

Q. When was that?

82
A. February 5, 1996.

Q. After Mrs. Palencia arrived what happened, if any?

Q. Do you recall what happened when you went to the PLDT before that
which place of PLDT did you go on February 5?

A. The PLDT employee told her that I will be the one to testify in their favor.

A. Malabon office, sir.

Q. After that what happened?

A. Then after that we proceeded to the Malabon police station.

Q. Now, do you remember what happened when you went at PLDT branch
in Malabon?

Q. What happened at the headquarters of Malabon?

A. I heard that no one wanted to testify for Palencia.

A. My statement was taken down.[18]

Q. From whom did you hear this?

Felicitas Torres categorically stated that she saw the accused Jose Silvestre
whom she identified in Court, shoot at the fallen man two times after
hearing two gunshots. While she did not see the accused-appellant actually
fire the first two shots, she turned her head upon hearing the two gunshots
and saw a man slumped on the ground and a man with a gun beside him.
After seeking cover for a short while, she saw the man with the gun shoot
the fallen man two more times moments after the first two shots were
fired. This leads to no other logical conclusion than that the accusedappellant was the one who fired them.[19]

A. From the PLDT personnel.

Q. So, what then did you do, if any?
A. I approached one of them.
Q. For what purpose did you approach this PLDT employee?
A. I told him about the killing incident that I witnessed.

Her testimony is corroborated by the autopsy report[20] prepared by Dr.

Alberto Bondoc, the findings of which are:

Q. What did this PLDT employee do, if any?

FINDINGS:

A. He brought me to the office of PLDT at the second floor.

1 Abrasions/Contusions: forehead, left.

Q. What happened at the second floor of PLDT office at Malabon?

2 Lacerated Wound: eyebrow, left, 22 mm.

A. I said I will testify.

3 Stabbed Wounds:

Q. What then happened after that?

3.1 angle of mandible, left, 9 mm., directed superiorly, posteriorly and

medially.

A. The complainant was called as she is a resident of Bulacan.

Q. Now, did the complainant arrive?

3.2 back, level of L2, PVL, left, 11 mm., directed anteriorly, superiorly and
slightly laterally, non-penetrating.

A. In the afternoon, sir.

4 Gunshot Wounds:

Q. Now, after the arrival, by the way, who was that person who arrived?

4.1 POE: back, level of L2, PVL, right, 8 x 10 mm., directed anteriorly,
superiorly and medially, puncturing the right lobe of the liver from inferior
to superior, puncturing the diaphragm, and lacerating the heart from the

A. Mrs. Palencia, sir.

83
posterior wall of the right ventricle to the anterior wall of the left atrium,
and puncturing the anterior chest wall;

find no basis in the record to rule that Felicitas Torres testimony was not
credible.

POX: none. A metallic slug, 9 x 18 mm. was recovered from the

subcutaneous tissues of the anterior chest wall, along the 2nd ICS, MCL,
left.

With regard to appellants argument that there was an inconsistency

between Torres sworn statement and her testimony in court, we agree with
appellee that the alleged inconsistency pertains to a trivial matter. While
she stated in her sworn statement that the accused was in front of (sa
harapan) the victim she thereafter testified that the gunman was beside
the victim. This statement refers only to how the accused stood in relation
to the victim and is not sufficient to weaken her positive assertion that she
saw the accused shoot the victim two times after hearing two shots
previously fired. This Court has repeatedly ruled that inconsistencies
between the sworn statements and direct testimony given in open court do
not necessarily discredit the witness since affidavits are oftentimes
incomplete and are generally inferior to the testimony of the witness in
open court.[22]

4.2 POE: nape, level of C5, right, 8 x 8 mm., directed anteriorly, inferiorly
and slightly medially, fracturing T1;
POX: none. The slug embedded within the spinal canal.
4.3 POE: abdomen, AAL, just above the anterior iliac spine, right, 10 x 12
mm., directed posteriorly, inferiorly and medially;
POX: none. The slug was embedded deep within the muscle tissues of the
right thigh.
4.4 POE: abdomen, MAL, just above the iliac crest, left, 10 x 12 mm.,
directed posteriorly, inferiorly and medially;
POX: none. The slug was embedded deep within the muscle tissues of the
left thigh.
5. Hemopericardium, massive.
6. Hemoperitoneum, moderate.
CAUSE OF DEATH: Cardiorespiratory Arrest due to Hemorrhagic Shock due
to Multiple Gunshot Wounds, Back and Nape.

The autopsy report shows that the victim sustained four (4) gunshot
wounds. This tallies with the testimony of Torres whose account of the
events reveals that a total of four shots was fired.
This Court has ruled on countless occasions that the trial court is in the
best position to determine facts and to assess the credibility of witnesses
as it is in a unique position to observe the witnesses deportment while
testifying which opportunity the appellate court is denied on appeal; this
Court will respect the findings and conclusions of the trial court provided
that they are supported by substantial evidence on record.[21] We find no
cogent reason to disturb the trial courts appreciation of the evidence and

In addition, the appellant has failed to show any improper motive on the
part of Torres to falsely impute such a terrible crime to him. Torres did not
know either the appellant or the victim prior to the shooting on January 18,
1996.[23] The testimony of a single witness, when credible and
trustworthy, is sufficient to convict[24] and must be given full faith and
credence when no reason to falsely testify is shown.[25]
As regards the lack of a police line-up when Torres identified Jose Silvestre
as the assailant, we agree with appellee that there is no law which requires
a police line-up as essential to a proper identification provided that the
identification was not suggested to the witness by the police.[26] In the
present case, there is no showing that the identification made by Torres in
the police station was suggested to her. In her sworn statement,[27] Torres
stated that:
Question # 22.
T: Inihaharap ko ngayon sa iyo ang taong ito, ano ang masasabi mo sa
kanya? (This investigator confronting affiant with the suspect who is
presently under detention at the Malabon Municipal Jail.)
S: Siya nga ho ang nakita kong bumaril kay Tito Palencia. (Affiant pointing
to the suspect Jojo Bungo whose real identity is JOSE SILVESTRE Y CRUZ, 40
yrs. old, married, jobless, and res at 240 C. Arellano St., Baritan, Malabon,
Metro-Manila.)
While on cross-examination, Torres testified that:

84
Q. Now when you were already at the police station of Malabon with the
employee of PLDT in the name of Jun whom did you talk to?

Q. Did he not deny the accusation against him?

A. He did not, sir.

A. Jun asked them who is the investigator because I was going to give a
statement.

ATTY. SIRUELO:

Q. Then where were you when Jun asked about the investigator?

Q. Now, when he was presented for your identification he was alone?

A. I was at the lobby, sir.

A. Yes, sir.

Q. You were left by Jun at the lobby of the police station?

Q. And you were told that this was Jojo Bungo?

A. Yes, sir.

Yes, sir.[28]

Q. And Jun went somewhere else inside the police station.

There is nothing in the testimony of Torres nor in her sworn statement that
would show that the police suggested that the suspect to be presented to
her was Jojo Bungo. The police merely asked what she could say about the
person presented to her, and she spontaneously answered that he was the
one who shot Luisito Palencia. She was only informed that the person
presented was Jojo Bungo after she had already pointed him out. She could
not have been mistaken in her identification of the gunman as she was
only five arms length away from them when the shooting occurred. During
her cross-examination, she explained how she was able to see the face of
the gunman as follows:

A. Yes, sir.
Q. So, at the time Jojo the alleged assailant was not still around?
A. Yes, sir.
Q. When Jun the police investigator came out they were already or Jun was
already with them?
A. I gave the statement first.
Q. Now, while you are giving your statement to the police investigator who
was with you?
A. No one because I was told to enter the room alone.
COURT:
Q. Now Jojo Bungo was eventually presented to you, is that not correct?
A. Yes, sir.
Q. Did you point him the assailant face to face?
A. Yes, sir.
Q. And what was his reaction as being pointed to you as the assailant?
A Nothing.

Q. xxx when you arrived there at the headquarters you were already
confronted with the suspect Jojo?
A. Yes, sir.
Q. And that was only the first time that you saw his face?
FISCAL ACUA:
Misleading.
COURT:
Witness may answer.
WITNESS:
A. No, because I saw him when he shot the victim.
ATTY. SIRUELO:

85
Q. You testified that during those dates that you saw the assailant at the
actual place of incident thru his back only, is that not correct?

I am referring to the witness, Bernadette Matias. I have a statement of the

other witness.

FISCAL ACUA:

Court:

That is misleading.

Then show it to the Fiscal and probably the Fiscal can admit it.

COURT:

Fiscal:

Let us put this way.

The reason why we did not present the witness because she was afraid in
fact that was sworn to.

Q. On direct examination you said you saw a person who turned out to be
Jojo Bungo shooting at the victim who was already lying on the ground face
down. On direct examination you said that when you again saw the
assailant Jojo for the first time his back was turned to you. Now, the
question is: how then did you see his face or recognize him as you claim?
A. Because he was turning his head from side to side.[29]
Appellant also argues that the court a quo erred in treating the judicial
admission of the statement of Bernadette Matias made by the prosecution
as hearsay. The records show that the prosecution only admitted the
existence and contents of the supposed statement made by Bernadette
Matias as shown by the following excerpt from the transcript:
Atty. Siruelo:
My next witness is SPO1 Crizaldo Castillo he was subpoenaed, Your Honor.
Court:
Can we not have stipulation or admissions concerning the testimony of
Castillo as corroborative only of that of Balacaa?
Atty.:
No, Your Honor, very material on our defense on the conflicting testimony
of the witness.
Court:
Do you have a copy thereof?
Atty.:

Court:
The existence and contents you can admit it Fiscal?
Fiscal:
Yes, Your Honor.
Court:
So we can dispense with the testimony of Castillo.[30]
The appellees admission only referred to the fact that the statement was
made by Matias. In People vs. Gaddi,[31] it was ruled that when testimony
is presented to establish not the truth but the tenor of the statement or the
fact that the statement was made, it is not hearsay.[32] The lower court
was therefore correct in admitting only the existence and contents and not
the truth or veracity of the unsworn statement of Matias as an
independently relevant statement[33] This statement cannot be used to
establish the veracity of it; it would be hearsay as Matias was not
presented in Court.
Appellant cannot fault the prosecution for the failure to present Bernadette
Matias. The prosecution has discretion to decide on who to call as witness
during trial and its failure to do so did not give rise to the presumption that
evidence willfully suppressed would be adverse if produced[34] since the
evidence was at the disposal of both parties.[35] If the defense believed
that the testimony of Bernadette Matias was important to its case, it
should have insisted on presenting her as a witness, or as the appellee
points out, made a tender of excluded evidence of the witness in question
under Section 40, Rule 132 of the Rules of Court. The same may be said of

86
Joanna Santiago, another supposed witness to the shooting, who was also
not presented during trial.
The next issue to settle is whether treachery and evident premeditation
can be appreciated to qualify the crime into murder. In finding the
presence of treachery and evident premeditation, the court a quo ruled
that:
A person being shot at while standing in a public place and talking to a
woman must have been shot with evident premeditation and treachery
because he was unaware of the impending attack which prevented him
from putting up a defense that will repel the attack that will also place the
attacker under some sort of risk by reason of said defense. After having
fallen to the ground head first, said persons being shot two times more
would have been indicative of the treacherous plan to kill him.[36]
There is treachery when the offender commits any of the crimes against
persons, employing means, methods, or forms in the execution thereof
which tend directly and specifically to insure its execution without risk to
himself arising from the defense which the offended party might make.[37]
For treachery to be appreciated as a qualifying circumstance, two elements
must concur: (1) the employment of means of execution which gives the
person attacked no opportunity to defend himself or retaliate; and (2) the
means of execution is deliberately or consciously adopted.[38]
We find the evidence of the prosecution insufficient to prove treachery as a
qualifying circumstance. The fact that Torres saw the accused-appellant
shoot the victim while he was already on the ground does not mean that
that was the only assault made by the accused-appellant on the victim.
[39] When Torres saw the accused-appellant shoot the victim, she had
already heard two shots fired. The autopsy report shows that the victim
also sustained two unexplained stab wounds. Given these facts, Torres
cannot be considered as having testified as to how the incident began
since she saw the incident already in progress.[40] Treachery cannot be
considered when the witness did not see the commencement of the
assault.[41]
Moreover, treachery cannot be appreciated when no particulars are known
with respect to the manner by which the aggression was made or how the
act began or developed[42] or when the evidence lacks any details
showing the manner of attack, its suddenness or unexpectedness, the
relative positions of the victim and his assailant, and the victims
defenselessness.[43]

Lastly, although the fatal wounds were found at the back of the victim, this
does not, of itself, compel a finding of treachery.[44] We disagree with the
Regional Trial Courts ratiocination that a person who, after falling to the
ground head first, was shot two more times indicates the treacherous plan
to kill him as it does not prove the suddenness of the attack which
prevented the victim from defending himself or retaliating. The conclusion
is speculative and based on a presumption not on the evidence. It is a
basic precept that treachery must be proven as indubitably as the killing
itself and it cannot be deduced from mere presumption or sheer
speculation.[45]
The court a quo also appreciated evident premeditation as a qualifying
circumstance. For evident premeditation to be appreciated, the following
must be proved:
1.) the time when the accused determined to commit the crime;
2.) an act manifestly indicating that the accused has clung to his
determination; and
3.) sufficient time between such determination and execution to allow him
to reflect upon the consequences of his act.[46]
Neither are we convinced that evident premeditation was proven. The
records are bereft of evidence of any of the above requisites of evident
premeditation. There is absolutely no proof of the time the accused
decided to commit the crime. There is no showing how the accused, Jose
Silvestre, planned the killing of the victim, Luisito Palencia. Neither is there
any showing of how much time elapsed before he executed his plan.
Absent all these, evident premeditation cannot be appreciated.[47]
Since both treachery and evident premeditation cannot be appreciated to
qualify the crime into murder, the accused-appellant can only be convicted
of the crime of homicide.[48] Article 249 of the Revised Penal Code
provides that the penalty for homicide is reclusion temporal. Since there
are no mitigating nor aggravating circumstances in the present case, the
penalty that should be imposed on the accused-appellant is reclusion
temporal in its medium period. Applying the Indeterminate Sentence Law,
the accused-appellant is sentenced to prision mayor, as the minimum, and
reclusion temporal in its medium period, as the maximum.[49]

87
The last issue to be resolved is whether the heirs of Luisito Palencia are
entitled to actual and moral damages and loss of income which would have
been earned had it not been for the victims untimely death.
We cannot sustain the award of P66,500.00 as actual damages in favor of
the heirs of Luisito Palencia. The records show that the prosecution failed
to substantiate the bare assertion of the widow, Marina Palencia, with other
corroborative evidence. The Court can only grant such amount for
expenses if they are supported by receipts.[50] In the absence thereof, no
award for actual damages can be granted.
We affirm the award of P50,000.00 as indemnity for the loss of Luisitos life
as this is in accord with prevailing jurisprudence.[51] However, the award
of moral damages must be reduced from P100,000.00 to P50,000.00[52]
as the purpose of this award is not to enrich the heirs of the victim but to
compensate them for the injuries to their feelings.[53]
We must also modify the award for loss of earning capacity. The absence of
documentary evidence to substantiate the widows claim for the loss will
not preclude recovery for said amount.[54] Marina Palencia testified that
her deceased husband earned P14,877.00 per month as a P.L.D.T.
repairman and installer.[55] It was also established that at the time of his
death, the victim was forty-four (44) years old.[56] Loss of earning capacity
is computed based on the following formula:[57]
Net Earning Capacity (x) = life expectancy [2/3(80-age at death)] x Gross
Annual Income (GAI) - living expenses (50% of GAI) x = 2(80-44) 3x
178,524.00 -89,262.00 x = 24 x 89,262.00
Net Earning Capacity = P 2,142,288.00

WHEREFORE, the appealed decision of the Regional Trial Court is hereby

MODIFIED, and the accused-appellant is found GUILTY OF HOMICIDE and
sentenced to an indeterminate penalty of ten (10) years and one (1) day of
prision mayor, as minimum, to seventeen (17) years and four (4) months of
reclusion temporal, as maximum.[58] Accused-appellant is further ordered
to pay the heirs of the victim the following: (1). death indemnity
P50,000.00, (2). moral damages P50,000.00, (3). loss of earning capacity
P2,142,288.00.
SO ORDERED.

88
EN BANC
G.R. No. L-20986

August 14, 1965

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. VICENTE N. CUSI JR., Presiding Judge, Branch I, Court of First
Instance of Davao, ARCADIO PUESCA alias Big Boy, WALTER APA,
JOSE GUSTILO alias Peping, FILOMENO MACALINAO, JR. alias
White, RICARDO DAIRO alias Carding, and MAGNO MONTANO alias
Edol, respondents.
DIZON, J.:
In Criminal Case No. 6813 of the Court of First Instance of Davao, Arcadio
Puesca, Walter Apa, Jose Gustilo, Filomeno Macalinao, Ricardo Dairo, and
Magno Montano were charged with robbery in band with homicide, to
which they pleaded not guilty. During the trial, and while Sgt. Lucio Bano of
the Police Force of Digos, Davao was testifying as a prosecution witness
regarding the extrajudicial confession made to him by the accused Arcadio
Puesca, he said that the latter, aside from admitting his participation in the
commission of the offense charged, revealed that other persons conspired
with him to to commit the offense, mentioning the name of each and
everyone of them. Following up this testimony, the prosecuting officer
asked the witness to mention in court the names of Puesca's alleged coconspirators. Counsel for the accused Macalinao, Gustilo and Dairo
objected to this, upon the ground that whatever the witness would say
would be hearsay as far as his clients were concerned. The respondent
judge resolved the objection directing the witness to answer the question
but without mentioning or giving the names of the accused who had
interposed the objection. In other words, the witness was allowed to
answer the question and name his co-conspirators except those who had
raised the objection. The prosecuting officer's motion for reconsideration of
this ruling was denied. Hence the present petition for certiorari praying
that the abovementioned ruling of the respondent judge be declared
erroneous and for a further order directing said respondent judge to allow
witness Bano to answer the question in full.
The question involved herein is purely one of evidence. There is no
question that hearsay evidence, if timely objected to, may not be
admitted. But while the testimony of a witness regarding a statement
made by another person, if intended to establish the truth of the facts

asserted in the statement, is clearly hearsay evidence, it is otherwise if the

purpose of placing the statement in the record is merely to establish the
fact that the statement was made or the tenor of such statement (People
vs. Lew Yon, 97 Cal. 224; VI Wigmore 177-8).
In the present case, the purpose of the prosecuting officer, as manifested
by him in the discussions below, is nothing more than to establish the fact
that the accused Puesca had mentioned to Sgt. Bano the names of those
who conspired with him to commit the offense charged, without claiming
that Puesca's statement or the answer to be given by Sgt. Bano would be
competent and admissible evidence to show that the persons so named
really conspired with Puesca. For this limited purpose, we believe that the
question propounded to the witness was proper and the latter should have
been allowed to answer it in full, with the understanding, however, that his
answer shall not to be taken as competent evidence to show that the
persons named really and actually conspired with Puesca and later took
part in the commission of the offense.
On the other hand, the fact which the prosecuting officer intended to
establish would seem to be relevant to explain why the police force of the
place where the offense was committed subsequently questioned and
investigated the persons allegedly named by Puesca.
PREMISES CONSIDERED, the writ is granted. The writ of preliminary
injunction issued heretofore is hereby set aside.

89
FIRST DIVISION
G.R. No. 146853

February 13, 2006

SALVADOR COMILANG, Petitioner,

vs.
FRANCISCO BURCENA and MARIANO BURCENA, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for review on certiorari of the Decision 1 dated
October 16, 2000 of the Court of Appeals (CA) in CA-G.R. CV No. 53794
which affirmed in toto the Decision dated March 28, 1996 of the Regional
Trial Court, Branch 22, Narvacan, Ilocos Sur (RTC) and the CA Resolution
dated December 19, 2000 which denied petitioners motion for
reconsideration.
The factual background of the case is as follows:
On April 29, 1985, Francisco Burcena and Mariano Burcena (respondents),
together with their mother, Dominga Reclusado Vda. de Burcena
(Dominga), filed a complaint for annulment of document with damages
against Salvador Comilang (petitioner). The complaint alleges that:
respondents are the owners of a 918-square meter parcel of land located in
Manueva, Santa, Ilocos Sur and the house with a floor area of 32 square
meters built thereon; respondents acquired the subject property through
their earnings while working abroad; the subject property was declared for
taxation purposes in Domingas name as administrator thereof; on or about
March 12, 1984, petitioner caused the execution of a Deed of Donation 2
over said property by taking advantage of Domingas blindness, old age
and physical infirmity; the said Deed of Donation is null and void because:
(a) Dominga had no right to donate the same since she is not its owner, (b)
Dominga did not give her consent and was misled to the execution of such
document, (c) granting Dominga had authority to donate, the donation is
void because the property donated is the only property declared in her
name and therefore she could not have reserved for herself in full
ownership sufficient property to support herself; petitioner is in possession
of the subject property, depriving respondents of its ownership and
enjoyment of its fruits.3

In his Answer dated February 24, 1986, petitioner contends that: the Deed
of Donation was freely and voluntarily executed by Dominga in
consideration of her love and affection for him; the subject property was
acquired by Dominga together with her two sisters, Aniceta Reclusado and
Juana Reclusado, long before respondents went to Hawaii; Dominga
erected a house on the land long before the outbreak of World War II;
Dominga financed out of her own money the construction of the house and
subsequent improvements thereof, she being a merchant when she could
still travel to Cagayan Valley; granting that respondents had been sending
money to Dominga, said money already belonged to her; if Dominga used
said money for improving the house, respondents have no right over the
house.4
During the pendency of the case and before she could take the witness
stand, Dominga died.5 Following pre-trial, trial on the merits ensued.
Witnesses for the plaintiffs were respondents and their aunt, Margarita
Burcena (Margarita); while petitioner testified on his own behalf.
On March 28, 1996, the RTC rendered a Decision in favor of the
respondents, the dispositive portion of which reads as follows:
WHEREFORE, decision is hereby rendered declaring the parcel of land and
the improvement therein consisting of the house mentioned and described
under paragraph 3 of the complaint, owned by the plaintiffs Francisco
Burcena and Mariano Burcena, but declaring the possession of the
defendant in good faith and further:
a) That the Deed of Donation, Exhibit "1" and submarkings null and
void;
b) That the defendant must vacate the property and turnover the
same to the plaintiffs.
c) Without pronouncement as to moral, actual and other forms of
damages as well as non-accounting of the produce from the
property by virtue of the defendants possession, thereof, as well
as attorneys fees.
SO ORDERED.6

90
The RTC held that the donation is void because Dominga could not have
validly disposed of the subject property since it was bought with the money
sent by respondents while working abroad, although declared for taxation
purposes in Domingas name.
Dissatisfied, petitioner filed an appeal with the CA. In its Decision dated
October 16, 2000, the CA found no cogent reason to disturb the factual
findings of the RTC, as well as the latters assessment of the credibility of
witnesses. The CA held that the case involves an implied trust known as
purchase price resulting trust under Article 1448 of the Civil Code where
property sold is granted to one party but the price is paid for by another;
that the evidence presented by the respondents convincingly show that
the subject property was bought with money belonging to respondents but
declared in Domingas name as administrator thereof; and that Domingas
act of donating the property to petitioner was beyond her authority and
capacity, done without the consent of the real owners, herein Respondents.
Thus, the CA sustained the conclusion of the RTC that the donation is void. 7
Petitioner filed a motion for reconsideration8 but it was denied by the CA in
its Resolution dated December 19, 2000.9
Hence, the present petition for review on certiorari anchored on the
following assigned errors:
The Honorable Court of Appeals erred:
1. IN DECLARING IN ITS QUESTIONED DECISION xxx THAT "xxx
implied trust arises over the subject property xxx"; xxx; AND/OR
2. IN DECIDING THE INSTANT CASE NOT IN ACCORDANCE WITH
LAW AND/OR APPLICABLE DECISIONS OF THIS HONORABLE COURT;
AND/OR
3. IN MISAPPRECIATING CIRCUMSTANCES OF SUBSTANCE AND
VALUE WHICH GREATLY AFFECT THE OUTCOME OF THE CASE OR
REVERSE THE DECISION OF THE HONORABLE REGIONAL TRIAL
COURT OF NARVACAN, ILOCOS SUR, BRANCH 22. 10
Petitioner assails the CAs application of the principle of implied trust to
nullify the Deed of Donation executed in his favor. He asserts that the
existence of an implied trust between respondents and Dominga in relation

to the subject property was never treated by the RTC nor was it brought in
issue on appeal before the CA. Petitioner further argues that Margaritas
statement on the witness stand that Dominga told her that the
respondents sent her money to buy the subject property, should not have
been given weight or credence by the RTC and the CA because it is hearsay
and has no probative value.
On the other hand, respondents maintain that the CA has the judicial
prerogative to rule on matters not assigned as errors in an appeal if
indispensable or necessary to the just resolution of the case. As to
Margaritas testimony, respondents submit that it is not hearsay since
Margarita merely stated what Dominga said.
The petition is bereft of merit.1avvphil.net
Once a court acquires jurisdiction over a case, it has wide discretion to look
upon matters which, although not raised as an issue, would give life and
meaning to the law. Indeed, the Rules of Court recognize the broad
discretionary power of an appellate court to consider errors not assigned.
Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides:
SEC. 8 Questions that may be decided. No error which does not affect the
jurisdiction over the subject matter or the validity of the judgment
appealed from or the proceedings therein will be considered, unless stated
in the assignment of errors, or closely related to or dependent on an
assigned error and properly argued in the brief, save as the court may pass
upon plain errors and clerical errors.
Thus, an appellate court is clothed with ample authority to review rulings
even if they are not assigned as errors in the appeal in these instances: (a)
grounds not assigned as errors but affecting jurisdiction over the subject
matter; (b) matters not assigned as errors on appeal but are evidently
plain or clerical errors within contemplation of law; (c) matters not
assigned as errors on appeal but consideration of which is necessary in
arriving at a just decision and complete resolution of the case or to serve
the interests of justice or to avoid dispensing piecemeal justice; (d) matters
not specifically assigned as errors on appeal but raised in the trial court
and are matters of record having some bearing on the issue submitted
which the parties failed to raise or which the lower court ignored; (e)
matters not assigned as errors on appeal but closely related to an error
assigned; and (f) matters not assigned as errors on appeal but upon which
the determination of a question properly assigned, is dependent. 11

91
In this case, since the petitioner directly brought in issue on appeal in his
Appellants Brief the declaration of the RTC that Dominga could not have
validly disposed of the subject property because respondents are the real
owners of the subject property since it was bought with money sent by
them, it was well-within the CAs authority to review and evaluate the
propriety of such ruling. In holding that an implied trust exists between
respondents and Dominga in relation to the subject property and therefore
Dominga had no right to donate the same to petitioner, the CA merely
clarified the RTCs findings.
Article 1448 of the Civil Code on implied trust provides:
Art. 1448. There is an implied trust when property is sold, and the legal
estate is granted to one party but the price is paid by another for the
purpose of having the beneficial interest of the property. The former is the
trustee, while the latter is the beneficiary. However, if the person to whom
the title is conveyed is a child, legitimate or illegitimate, of the one paying
the price of the sale, no trust is implied by law, it being disputably
presumed that there is a gift in favor of the child. (Emphasis supplied)
The trust created under the first sentence of Article 1448 is sometimes
referred to as a purchase money resulting trust, the elements of which are:
(a) an actual payment of money, property or services, or an equivalent,
constituting valuable consideration; and (b) such consideration must be
furnished by the alleged beneficiary of a resulting trust. 12 Respondents
have shown that the two elements are present in the instant case.
Dominga was merely a trustee of the respondents in relation to the subject
property. Therefore, Dominga could not have validly donated the subject
property to petitioner, as expressly provided in Article 736 of the Civil
Code, thus:
Art. 736. Guardians and trustees cannot donate the property entrusted to
them.
Truly, nobody can dispose of that which does not belong to him.

13

Anent Margaritas testimony that Dominga told her that the respondents
sent her (Dominga) money to buy the subject property, it cannot be
categorized as hearsay evidence. Margaritas testimony was not presented
to prove the truth thereof, but only to establish the fact that Dominga
narrated to Margarita the source of the funds used in the purchase of the

subject property.14 What was sought to be admitted in evidence, and what

was actually admitted in evidence, was the fact that the statement was
made by Dominga to Margarita, not necessarily that the matters stated by
her were true. The said utterance is in the nature of an independently
relevant statement which may be admitted in evidence as such, but not
necessarily to prove the truth thereof.15
Thus, while it is true that the testimony of a witness regarding a statement
made by another person, if intended to establish the truth of the fact
asserted in the statement, is clearly hearsay evidence, it is otherwise if the
purpose of placing the statement in the record is merely to establish the
fact that the statement was made or the tenor of such statement.
Regardless of the truth or falsity of a statement, when the fact that it has
been made is relevant, the hearsay rule does not apply and the statement
may be shown. As a matter of fact, evidence as to the making of the
statement is not secondary but primary, for the statement itself may
constitute a fact in issue, or be circumstantially relevant as to the
existence of such a fact.16 For this reason, the statement attributed to
Dominga regarding the source of the funds used to purchase the subject
property related to the court by Margarita is admissible if only to establish
the fact that such statement was made and the tenor thereof.
Besides, the testimony of Margarita is not the main basis for the RTCs
decision. In fact, her testimony is not indispensable. It merely serves to
corroborate the testimonies of the respondents on the source of the funds
used in purchasing the subject property. The testimonies of all three
witnesses for the plaintiffs were found to be convincing and credible by the
RTC. This Court will not alter the findings of the RTC on the credibility of
witnesses, principally because trial courts have vastly superior advantages
in ascertaining the truth and in detecting falsehood as they have the
opportunity to observe the manner and demeanor of witnesses while
testifying.17
All told, the CA did not commit any reversible error in rendering the
assailed Decision dated October 16, 2000 and the Resolution dated
December 19, 2000 in CA-G.R. CV No. 53794. The factual determinations of
the CA therein are binding and conclusive upon this Court as no compelling
reasons exist necessitating a re-examination or reversal of the same.
WHEREFORE, the petition is DENIED and the assailed Decision and
Resolution are AFFIRMED. Costs against petitioner.

92
SO ORDERED.
FACTS
Respondents, together with their mother, Dominga, filed a
complaint for annulment of document with damages against petitioner. The
complaint alleges that: respondents are the owners of a parcel of land
located in Ilocos Sur and the house built thereon; respondents acquired the
subject property through their earnings while working abroad; the subject
property was declared for taxation purposes in Domingas name as
administrator thereof; petitioner caused the execution of a Deed of
Donation over said property by taking advantage of Domingas blindness,
old age and physical infirmity; the said Deed of Donation is null and void
because: (a) Dominga had no right to donate the same since she is not its
owner, (b) Dominga did not give her consent and was misled to the
execution of such document, (c) granting Dominga had authority to
donate, the donation is void because the property donated is the only
property declared in her name and therefore she could not have reserved
for herself in full ownership sufficient property to support herself; petitioner
is in possession of the subject property, depriving respondents of its
ownership and enjoyment of its fruits.
ISSUE
Whether or not implied trust arise dove the subject property
RULING
In holding that an implied trust exists between respondents and
Dominga in relation to the subject property and therefore Dominga had no
right to donate the same to petitioner, the CA merely clarified the RTCs
findings.
Article 1448 of the Civil Code on implied trust provides:
Art. 1448. There is an implied trust when property is sold, and the legal
estate is granted to one party but the price is paid by another for the
purpose of having the beneficial interest of the property. The former is the
trustee, while the latter is the beneficiary. However, if the person to whom
the title is conveyed is a child, legitimate or illegitimate, of the one paying
the price of the sale, no trust is implied by law, it being disputably
presumed that there is a gift in favor of the child.
The trust created under the first sentence of Article 1448 is
sometimes referred to as a purchase money resulting trust, the elements
of which are: (a) an actual payment of money, property or services, or an
equivalent, constituting valuable consideration; and (b) such consideration
must be furnished by the alleged beneficiary of a resulting
trust. Respondents have shown that the two elements are present in the
instant case. Dominga was merely a trustee of the respondents in relation
to the subject property. Therefore, Dominga could not have validly donated

the subject property to petitioner, as expressly provided in Article 736 of

the Civil Code, thus:
Art. 736. Guardians and trustees cannot donate the property
entrusted to them.
Truly, nobody can dispose of that which does not belong to him.

93
EN BANC
G.R. No. 117487 December 12, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARNEL ALICANDO y BRIONES, accused-appellant.
PUNO, J.:
The case at bar involves the imposition of the death penalty. With all our
frailties, we are asked to play the role of an infallible God by exercising the
divine right to give or take away life. We cannot err in the exercise of our
judgment for our error will be irrevocable. Worse, our error can result in the
worst of crimes murder by the judiciary.
The records reveal that appellant Arnel Alicando was charged with the
crime of rape with homicide 1 in an Information which reads:
That on or about the 12th day of June 1994 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused,
did then and there willfully, unlawfully and feloniously and by
means of force, violence and intimidation to wit: by then and there
pinning down one KHAZIE MAE PENECILLA, a minor, four years of
age, choking her with his right hand, succeeded in having carnal
knowledge with her and as a result thereof she suffered asphyxia
by strangulation fractured cervical vertebra and lacerations of the
vaginal and rectal openings causing profuse hemorrhages and
other injuries which are necessarily fatal and which were the direct
cause of her death.
CONTRARY TO LAW.
On June 29, 1994, appellant was arraigned with the assistance of Atty.
Rogelio Antiquiera of the PAO, Department of Justice. Appellant pleaded
guilty.
After appellant's plea of guilt, the trial court ordered the prosecution to
present its evidence. It also set the case for reception of evidence for the
appellant, if he so desired. 2

The prosecution evidence shows that in the afternoon of June 12, 1994,
Romeo Penecilla, father of the four year old victim Khazie Mae, was
drinking liquor with Ramil Rodriguez and Remus Gaddi in his (Penecilla's)
house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo. Appellant joined them
but every now and then would take leave and return. Appellant was living
in his uncle's house some five (5) arm's length from Penecilla's house. At
about 4:30 p.m., Penecilla's group stopped drinking and left.
Luisa Rebada also lives in the Penecilla neighborhood, about one and a half
(1-1/2) arm's length from the house of appellant. At about 5:30 p.m. of that
day, she saw the victim at the window of appellant's house. She offered to
buy her "yemas" but appellant closed the window. Soon she heard the
victim crying. She approached appellant's house and peeped through an
opening between its floor and door. The sight shocked her appellant was
naked, on top of the victim, his left hand choking her neck. She retreated
to her house in fright. She gathered her children together and informed her
compadre, Ricardo Lagrana, then in her house, about what she saw.
Lagrana was also overcome with fear and hastily left.
Romeo Penecilla returned to his house at 8 o'clock in the evening. He did
not find Khazie Mae. He and his wife searched for her until 1 o'clock in the
morning. Their effort was fruitless. Rebada was aware that the Penecillas
were looking for their daughter but did not tell them what she knew.
Instead, Relada called out appellant from her window and asked him the
time Khazie Mae left his house. Appellant replied he was drunk and did not
know.
As the sun started to rise, another neighbor, Leopoldo Santiago went down
from his house to answer the call of nature. He discovered the lifeless body
of Khazie Mae under his house. Her parents were informed and so was the
police. At 9:00 a.m., Rebada suffered a change of heart. She informed
Romeo Penecilla and his wife Julie Ann, that appellant committed the
crime. Forthwith, appellant was arrested and interrogated by PO3 Danilo
Tan. He verbally confessed his guilt without the assistance of counsel. On
the basis of his uncounselled verbal confession and follow up
interrogations, the police came to know and recovered from appellant's
house, Khazie Mae's green slippers, a pair of gold earrings, a buri mat, a
stained pillow and a stained T-shirt all of which were presented as evidence
for the prosecution.

94
The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal
officer. His autopsy report reveals the following injuries sustained by the
victim:

VAGINAL FINDINGS/ANAL FINDINGS:

HEAD & NECK/THORACO-ABDOMINAL REGIONS:

b) Hematoma, from the fourchette up to the rectum.

1) Contusion , purple in color, 11 x 11.3 cm., in dia., from left and right
anterior neck, down to the medial portion of the left and right
infraclavicular area.

c) Lacerated wound, lateral wall of the vagina up to the level of the

promontory of the sacrum with a length of 8 centimeters.

2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left chest
wall.
3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right
antero- inferior chest wall.

a) Lacerated wound, from the fourchette up to the dome of the rectum..

d) A cylinder with a diameter of 2 cms., easily passes the vaginal and anal
openings.
CAUSE OF DEATH:
A) ASPHYXIA BY STRANGULATION.

4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.

B) FRACTURED, 2nd CERVICAL VERTEBRA.

5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left iliac

crest.

C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL & RECTAL

OPENINGS.

ON OPENING THE SKULL 7 THORACO-ABDOMINAL CAVITIES:

Appellant adopted the autopsy report of Dr. Doromal as his documentary

evidence to prove that the proximate cause of Khazie Mae's death was
asphyxia by strangulation.

a) Fractured, 2nd cervical vertebra.

b) Fractured, crecoid cartilage.

On July 20, 1994, the trial court found appellant guilty and sentenced him
to death, viz:

c) Both lungs, expanded with multiple petechial hemorrhages.

d) Other internal organs, congested.
EXTREMITIES:
1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd, left
forearm.
2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left forearm.
3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd, right
forearm.

WHEREFORE, the court hereby finds the accused, Arnel

Alicando, GUILTY beyond reasonable doubt for (sic) the
Crime of Rape with Homicide penalized under Article 335 of
the Revised Penal Code as amended by paragraphs 6 and 7
(No. 4) Section 11 of Republic Act No. 7659. Arnel Alicando
is hereby sentenced to suffer a (sic) penalty of death and
to indemnify the heirs of the offended party, Khazie Mae D.
Penecilla, the sum of P50,000.00.
The death sentence shall be executed by putting the
person under sentence to death by electrocution (electric
chair). As soon as facilities are provided by the Bureau of

95
Prisons, the method of carrying out his sentence shall be
changed by gas poisoning (sic).
Here ends Khazie Mae's quest for justice. Her tormentor
must suffer for the grievous offense he had committed. He
deserves no mercy.
Cost against the accused.
SO ORDERED.
The case is before us on automatic review considering the death penalty
imposed by the trial court. A new counsel, Atty. Joel Tiongco, took the
cudgel for appellant. In his Brief, appellant assails the decision of the trial
court as a travesty of justice.
We find that the Decision of the trial court sentencing the appellant to
death is shot full of errors, both substantive and procedural. The conviction
is on an amalgam of inadmissible and incredible evidence and supported
by scoliotic logic.

by dialects and Pilipino as a national language is still in the process

of evolution. 4 Judicial notice can be taken of the fact that many
Filipinos have limited understanding either of the Pilipino or English
language, our official languages for purposes of communication
and instruction. 5 The importance of reading the complaint or
information to the appellant in the language or dialect known to
him cannot thus be understated.
In the case at bar, the records do not reveal that the Information against
the appellant was read in the language or dialect known to him. The
Information against the appellant is written in the English language. It is
unbeknown whether the appellant knows the English language. Neither is it
known what dialect is understood by the appellant. Nor is there any
showing that the Information couched in English was translated to the
appellant in his own dialect before his plea of guilt. The scanty transcript
during his arraignment, reads: 6
Prosecutor Edwin Fama Appearing as public prosecutor
Atty. Rogelio Antiquiera For the accused, Your Honor.
Ready for arraignment.

First. The arraignment of the appellant is null and void. The trial judge
failed to follow section (1) (a) of Rule 116 on arraignment. Said section
provides:

Interpreter (Reading the information to the accused for

arraignment and pre-trial.)

Sec. 1. Arraignment and plea; how made.

Note: (After reading the information to the accused,

accused pleads guilty)

(a) The accused must be arraigned before the court where the complaint or
information has been filed or assigned for trial. The arraignment must be
made in open court by the judge or clerk by furnishing the accused a copy
of the complaint or information with the list of witnesses, reading the same
in the language or dialect known to him and asking him whether he pleads
guilty or not guilty. The prosecutor may, however, call at the trial witnesses
other than those named in the complaint or information.
The reading of the complaint or information to the appellant in the
language or dialect known to him is a new requirement imposed by
the 1985 Rules on Criminal Procedure. It implements the
constitutional right of an appellant ". . . to be informed of the
nature and cause of the accusation against him." 3 The new rule
also responds to the reality that the Philippines is a country divided

One need not draw a picture to show that the arraignment of the
appellant is a nullity. It violated section 1(a) of Rule 116, the rule
implementing the constitutional right of the appellant to be
informed of the nature and cause of the accusation against him. It
also denied appellant his constitutional right to due process of law.
7
It is urged that we must presume that the arraignment of the
appellant was regularly conducted. When life is at stake, we cannot
lean on this rebuttable presumption. We cannot assume. We must
be sure.
Second. The plea of guilt made by the appellant is likewise null and void.
The trial court violated section 3 of Rule 116 when it accepted the plea of
guilt of the appellant. Said section provides:

96
Sec. 3. Plea of guilty to capital offense; reception of evidence.
When the accused pleads guilty to a capital offense, the court shall
conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of his plea and require the
prosecution to prove his guilt and the precise degree of culpability.
The accused may also present evidence in his behalf.
The records reveal how the trial judge inadequately discharged this
duty of conducting a "searching inquiry." In the hearing of June 28,
1994, the transcripts reveal the following: 8

Note (Accused raised his prison uniform or shirt and showed to the court
his body from waist up.)
Accused No, Your Honor.
Court You were not maltreated in the jail?
Accused No, Your Honor.
Court Please let us see whether you have bruises so that you will be
examined by a physician to the order of the court?

Note (After reading the information to the accused, accused pleads guilty.)

Accused No, Your Honor.

Court Question (sic) of the court to the accused.

Court If you will plead guilty, that plea of guilty has no use because there
will be a mandatory death penalty, do you still insist on your plea of guilty?

Q Considering that this is a crime and under the amended law is a heinous
crime, because of your plea of guilty without the consent or even against
the discretion of the court, the court will give you a mandatory death
penalty because of the crime charged, do you understand?
Accused Yes, Your Honor.
Q Did you enter a plea of guilty on your own voluntary will or without any
force or intimidation from any one or whatever?
Accused None, Your Honor.
Q Are you sure?

Accused Yes, Your Honor.

Court If you plead guilty to the crime charged there will be some effects on
your civil rights hut not until the decision will be affirmed by the Supreme
Court.
Accused Yes, Your Honor.
Note (See Order dated June 28, 1994 attached to the records of this case.)
In the next hearing on July 11, 1994, the following verbal exchange
transpired, viz: 9

Accused Yes, Your Honor.

Fiscal Fama: Appearing as the public prosecutor, ready, Your Honor.

Q Or maybe because you were manhandled or maltreated by anyone and

that will just be the consideration for you to plead guilty?

Our first witness is Dr. Tito Doromal, Your Honor.

Accused No, Your Honor.

Court Were you not manhandled, please let us see your body?

Atty. Antiquiera: For the accused, Your Honor.

Court Before the court will proceed with the reception of evidence by the
prosecution Arnel Alicando, please come here. (at this juncture, Arnel
Alicando, come near to the court)

97
The court is warning you again that this is reception of evidence by the
prosecution after you plead guilty to the crime charged at, do you
understand?

that appellant has a nodding acquaintance of English. It will be noted too

that the trial court did not bother to explain to the appellant the essential
elements of the crime of rape with homicide.

A Yes.

A cursory examination of the questions of the trial court to establish the

voluntariness of appellant's plea of guilt will show their utter insufficiency.
The trial court simply inquired if appellant had physical marks of
maltreatment. It did not ask the appellant when he was arrested, who
arrested him, how and where he was interrogated, whether he was
medically examined before and after his interrogation, etc. It limited its
efforts trying to discover late body marks of maltreatment as if
involuntariness is caused by physical abuse alone. Regretfully, it even
turned a blind eye on the following damning entry on the June 13, 1994
Record of Events of the Iloilo PNP (Exh. "M") showing that after his arrest,
the appellant was mobbed by inmates while in jail and had suffered
hematoma, viz:

Q Do you still affirm and confirm to your plea of guilty of rape with
homicide?
A Yes, Your Honor.
Q Do you still insist that your plea of guilty is voluntary without force,
intimidation or whatsoever?
A Yes.
Q The court is warning you that after reception of evidence, the imposable
penalty is mandatory death?
A Yes, Your Honor.
Q Despite of that, you still insist on your plea of guilty?
A Yes, Your Honor.
Court Okey, proceed.
Section 3 of Rule 116 which the trial court violated is not a new rule for it
merely incorporated the decision of this Court in People vs. Apduhan, Jr., 10
and reiterated in an unbroken line of cases. 11 The bottom line of the rule is
that the plea of guilt must be based on a free and informed judgment.
Thus, the searching inquiry of the trial court must be focused on: (1) the
voluntariness of the plea, and (2) the full comprehension of the
consequences of the plea. The questions of the trial court failed to show
the voluntariness of the plea of guilt of the appellant nor did the questions
demonstrate appellant's full comprehension of the consequences of his
plea. The records do not reveal any information about the personality
profile of the appellant which can serve as a trustworthy index of his
capacity to give a free and informed plea of guilt. The age, socio-economic
status, and educational background of the appellant were not plumbed by
the trial court. The questions were framed in English yet there is no inkling

c-0262-94
INFORMATION
2:50 PM, P02 Salvador Pastoloro, Jr., PNP assigned at
327th PNP MFC, informed this office thru SPO1 W. Garcera
alleging that at about 9:00 AM this date when the suspect
ARNEL ALICANDO Y BRIONES, 24 yrs. old, residence of
Rizal, Palapala Zone I, CP, been arrested and mobbed by
the irrate residents of Zone II Rizal, Palapala, GP, in
connection of the Rape with Homicide case wherein the
victim KHAZIE MAE PENECILLA Y DRILON, 4 yrs, old,
residence of same place who was discovered dead under
the house thereat. Suspect when turned over to this office
and put on lock up cell was also mobbed by the angry
inmates thus causing upon him hematoma contusion on
different parts of his body.
Likewise, the trial court's effort to determine whether appellant had full
comprehension of the consequences of his plea is fatally flawed. It warned
the appellant he would get the mandatory death penalty without
explaining the meaning of "mandatory" It did not inform the appellant of
the indemnity he has to pay for the death of the victim. It cautioned
appellant there ". . . will be some effects on your civil rights" without telling

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the appellant what those "effects" are and what "civil rights" of his are
involved.

A June 13, 1994, when I arrested him.

Q Previous to that you have never seen him?

Appellant's plea of guilt is void and the trial court erred in using it to
sentence him to death. We stress that under the 1985 Rules of Criminal
Procedure, a conviction in capital offenses cannot rest alone on a plea of
guilt. Section 3 of Rule 116 requires that after a free and intelligent plea of
guilt, the trial court must require the prosecution to prove the guilt of the
appellant and the precise degree of his culpability beyond reasonable
doubt. This rule modifies prior jurisprudence that a plea of guilt even in
capital offenses is sufficient to sustain a conviction charged in the
information without need of further proof. The change is salutary for it
enhances one of the goals of the criminal process which is to minimize
erroneous conviction. We share the stance that "it is a fundamental value
determination of our system that it is far worse to convict an innocent
person than let a guilty man go free. 12

A Yes, sir.
Q When for the first time did you start investigating Arnel Alicando?
A After I finished investigating the body of the victim, Khazie Mae Penecilla.
Q And that was also after you were informed that Arnel Alicando was a
suspect in the raping of Khazie Mae Penecilla?
A Yes, sir
Atty. Antiquiera:

Third. Some prosecution evidence, offered independently of the plea of

guilt of the appellant, were inadmissible, yet, were considered by the trial
court in convicting the appellant.

Q And who was that person who informed you of the suspect?
A Luisa Rebada.

Thus, the trial court gave full faith and credit to the physical evidence
presented by the prosecution. To quote its Decision, 13 viz:
Further, there are physical evidence to prove Khazie was raped.
These consists of a pillow with bloodstains in its center 14 and the Tshirt 15 of the accused colored white with bloodstains on its bottom.
These physical evidence are evidence of the highest order. They
strongly corroborate the testimony of Luisa Rebada that the victim
was raped.
These are inadmissible evidence for they were gathered by PO3 Danilo Tan
of the Iloilo City PNP as a result of custodial interrogation where appellant
verbally confessed to the crime without the benefit of counsel. PO3 Tan
admitted under cross-examination, viz: 16
CROSS-EXAMINATION
BY ATTY. ANTIQUIERA:
Q Mr. Witness, when for the first time did you see Arnel Alicando?

Q Mrs. Rebada who is the witness in this case?

A Yes, sir.
Q And you started investigating Arnel Alicando in the morning of June 13,
1994?
A Yes, sir.
Q How long did you interrogate Arnel Alicando in the morning of June 13,
1994?
A I cannot remember the length of time I investigated him.
Q Did it take you the whole morning of June 13, 1994 in interrogating and
investigating Arnel Alicando?
A Yes, sir.

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Q And the investigation you conducted continued in the afternoon of the
same date?

Q When did you inform, the date when you informed Alicando of his
Constitutional rights?

A Yes, sir.

A On June 13.

Q The following day, June 14, 1994, you still investigated and interrogated
Arnel Alicando.

Q On what hour did you inform him?

A After the witness identified him.

A Yes, sir.
Q What constitutional rights did you inform Alicando of?
Q And when did you stop, finally, investigating and interrogating Arnel
Alicando?

A The right to remain silent, and right to get his lawyer and I have
interpreted in Visayan language.

A After I finished recovering all the exhibits in relation to this case.

Q What date did you stop your investigation?
A June 14, 1994, when I finished recovering the white T-shirt and pair of
earring.

Q And during your investigation for almost two (2) days the accused was
never represented by counsel, is that correct?
A Yes, sir.
Atty. Antiquiera:

Atty. Antiquiera:
Q You testified in this case, Mr. Witness, you never informed the court that
you apprised the accused of his constitutional rights, is that correct?

Q Are you aware of the law that enjoins a public officer to inform the
person of his constitutional rights?
A Yes, sir.

A I apprised him.
That is all, Your Honor.
Q My question is, during your testimony before this court under the direct
examination of the prosecution you never informed the court that you
apprised the accused of his constitutional rights?
Pros. Fama:
I did not ask him that question. How will he answer?
Court:
Sustained.
Atty. Antiquiera:

It is now familiar learning that the Constitution has stigmatized as

inadmissible evidence uncounselled confession or admission.
Section 12 paragraphs (1) and (3) of Article III of the Constitution
provides:
Sec. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and
to have competent and independent counsel preferably of his own choice.
If the person cannot afford the services of counsel, he must be provided
with one. These rights cannot be waived except in writing and in the
presence of counsel.

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(3) Any confession or admission obtained in violation of this or the
preceding section shall be inadmissible against him.

Pros. Fama:
Q You mean to say to conceal the crime?

In the case at bar, PO3 Tan did not even have the simple sense to reduce
the all important confession of the appellant in writing. Neither did he
present any writing showing that appellant waived his right to silence and
to have competent and independent counsel despite the blatant violation
of appellant's constitutional right, the trial court allowed his uncounselled
confession to flow into the records and illicitly used it in sentencing him to
death.
It is not only the uncounselled confession that is condemned as
inadmissible, but also evidence derived therefrom. The pillow and the Tshirt with the alleged bloodstains were evidence derived from the
uncounselled confession illegally extracted by the police from the
appellant. Again, the testimony of PO3 Tan makes this all clear, viz: 17

A Yes, sir.
Q What else aside from this fish basin, what else did you recover?
A At around 7 o'clock in the evening he further pointed to us the old mat
and the pillow wherein he layed the victim Khazie Mae Penecilla
Q You mean to say that you returned back to the scene of the incident that
time?
A It was already night time and it was only Kagawad Rodolfo Ignacio, my
companion, who went to the place of the incident.

Q Did the accused Arnel Alicando accompany you to the place of the
incident?

Q You mean to say you were verbally instructed by the accused?

A Yes, sir.

A Yes, sir.

Q When you arrived at the place of the incident what did you do?

Q In what particular place did you recover those things?

A He pointed to the fish basin.

A Inside the room where he raped the child.

Q Can you identify this fish basin which you said pointed to you by Arnel
Alicando?

Q Whose house is that?

A Yes, sir.
Q Please point?
A (Witness pointing to the fish basin already marked as Exhibit "H".)
Q Did you ask the accused what he did with this fish basin?
A I asked the accused what he did with the fish basin and he answered that
he used the fish basin to cover Khazie Mae Penecilla when she was already
dead.

A The house of Imelda Alicando.

Q The wife of Romeo Alicando?
A Yes, sir.
Q In what particular place is that situated?
A Inside the room where the accused was sleeping at Rizal-Palapala.
Pros. Fama:

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Q You mean to say inside that room the victim was raped by the accused?

Q You mean to say you returned back on June 14, you recovered the items
accompanied by the accused?

A Yes, sir.
A No more, I only followed his direction.
Q Can you point that pillow which you said you recovered inside the room
of Imelda Alicando?

Q He made verbal direction to you?

A Yes, sir.

A Yes, sir.

Q And the mat?

Q Can you please show us the white t-shirt?

A (Witness taking out from the fish basin the mat and pillow.)

A (Witness taking out a white t-shirt from the fish basin.)

Q Did you find something on the pillow?

Q Please examine that white t-shirt?

A The pillow have bloodstain in the middle.

A The t-shirt have a bloodstain.

. . This was already marked as Exhibit "J", Your Honor and the mat as
Exhibit "I".
Q Aside from this what did you recover from the place of incident?
A On June 14, 1994, at about 10:00 o'clock in the morning the accused
Arnel Alicando further informed me that he kept the gold earring of the
victim and her clothes inside the room of the house of Imelda Alicando.
Q Where?
A I saw the clothes of Khazie Mae Penecilla inside the room where the rape
took place hanged on the clothes line. And I found the pair of earring at the
bamboo post of the fence.
Court:
Q Where is that bamboo post of the fence situated?
A Around the fence of Imelda Alicando situated at the from gate on the
right side.
Pros. Fama:

We have not only constitutionalized the Miranda warnings in our

jurisdiction. We have also adopted the libertarian exclusionary rule
known as the "fruit of the poisonous tree," a phrase minted by Mr.
Justice Felix Frankfurter in the celebrated case of Nardone v.
United States. 18 According to this rule, once the primary source
(the "tree") is shown to have been unlawfully obtained, any
secondary or derivative evidence (the " fruit " ) derived from it is
also inadmissible. 19 Stated otherwise, illegally seized evidence is
obtained as a direct result of the illegal act, whereas the "fruit of
the poisonous tree" is the indirect result of the same illegal act.
The "fruit of the poisonous tree" is at least once removed from the
illegally seized evidence, but it is equally inadmissible. The rule is
based on the principle that evidence illegally obtained by the State
should not be used to gain other evidence because the originally
illegally obtained evidence taints all evidence subsequently
obtained. 20 We applied this exclusionary rule in the recent case of
People vs. Salanga, et al., 21 a ponencia of Mr. Justice Regalado.
Salanga was the appellant in the rape and killing of a 15-year old
barrio lass. He was, however, illegally arrested. Soldiers took him
into custody. They gave him a body search which yielded a lady's
underwear. The underwear was later identified as that of the
victim. We acquitted Salanga. Among other reasons , we ruled that
"the underwear allegedly taken from the appellant is inadmissible
in evidence, being a so-called "fruit of the poisonous tree." 22

102
But even assuming arguendo that the pillow and the t-shirt were
admissible evidence, still, the trial court erred in holding that they
"strongly corroborated the testimony of Luisa Rebada that the victim was
raped." For one, there was no basis for the trial court to conclude that the
stains on the pillow and t-shirt were human bloodstains. The pillow and the
t-shirt were not examined by any expert. To hold that they were human
bloodstains is guesswork. For another, there was no testimony that the
stains were caused by either the blood of the appellant or the victim. In
addition, there was no testimony that the t-shirt was the one worn by the
appellant when he allegedly committed the crime. It must also be noted
that it is not unnatural for appellant to have bloodstains on his shirt. He is
a butcher by occupation. Romeo Penecilla himself, the father of the victim,
testified he knows the appellant "because he used to accompany me
during butchering of animals." 23
The burden to prove that an accused waived his right to remain silent and
the right to counsel before making a confession under custodial
interrogation rests with the prosecution. It is also the burden of the
prosecution to show that the evidence derived from confession is not
tainted as "fruit of the poisonous tree." The burden has to be discharged
by clear and convincing evidence. Indeed, par. 1 of Section 12 of Article III
of the Constitution provides only one mode of waiver the waiver must be
in writing and in the presence of counsel. In the case at bar, the records
show that the prosecution utterly failed to discharge this burden. It matters
not that in the course of the hearing, the appellant failed to make a timely
objection to the introduction of these constitutionally proscribed evidence.
The lack of objection did not satisfy the heavy burden of proof that rested
on the prosecution.
There is no and there ought not to be any disagreement on basic
principles. The Court should be concerned with the heinousness of the
crime at bar and its despicable perpetration against a 4-year old girl, an
impersonation of innocence itself. The Court should also be concerned with
the multiplication of malevolence in our midst for there is no right to be
evil, and there are no ifs and buts about the imposition of the death
penalty as long as it remains unchallenged as part of the laws of our land.
These concerns are permanent, norms hewn in stone, and they transcend
the transitoriness of time.
Be that as it may, our commitment to the criminal justice system is not
only to convict and punish violators of our laws. We are equally committed
to the ideal that the process of detection, apprehension, conviction and

incarceration of criminals should be accomplished with fairness, and

without impinging on the dignity of the individual. In a death penalty case,
the Court cannot rush to judgment even when a lowlife is involved for an
erroneous conviction will leave a lasting stain in our escutcheon of justice.
In sum, the Court cannot send the appellant to die in the electric chair on
the basis of the procedural irregularities committed by, and the
inadmissible evidence considered by the trial court. In Binabay vs. People,
et al., 24 ponencia of Mr. Chief Justice R. Concepcion, this Court held that no
valid judgment can be rendered upon an invalid arraignment. Since in the
case at bar, the arraignment of the appellant is void, his judgment of
conviction is also void. In fairness to the appellant, and in justice to the
victim, the case has to be remanded to the trial court. for further
proceedings. There is no philosophy of punishment that allows the State to
kill without any semblance of fairness and justice.
IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting
accused Arnel Alicando of the crime of Rape with Homicide and sentencing
him to suffer the penalty of death is annulled and set aside and the case is
remanded to the trial court for further proceedings. No costs.
SO ORDERED.
Facts:
Accused was convicted with a crime of rape with homicide of a 4 year old
girl. He was arrested and during the interrogation he made a confession of
the crime without the assistance of a counsel. By virtue of his uncounseled
confession the police came to know where to find the evidences consisting
of the victims personal things like clothes stained with blood which was
admitted to court as evidences. The victim pleaded guilty during the
arraignment and was convicted with the death penalty. The case was
forwarded to the SC for automatic review.
Issue: Whether or not due process during the custodial investigation was
accorded to the accused.
Held:
Due process was not observed in the conduct of custodial investigation for
the accused. He was not informed of his right to a counsel upon making his
extrajudicial confession and the information against him was written in a

103
language he could not understand and was not explained to him. This is in
violation of section 1(a) of Rule 116, the rule implementing the
constitutional right of the appellant to be informed of the nature and cause
of the accusation against him. The lower court also violated section 3 of
Rule 116 when it accepted the plea of guilt of the appellant without
conducting a search inquiry on the voluntariness and full understanding of
the accused of the consequences of his plea. Moreover the evidences
admitted by the court that warranted his convicted were inadmissible
because they were due to an invalid custodial investigation that did not
provide the accused with due process of the law. Thus the SC annulled the
decision of the imposition of the death penalty and remanded the case
back to the lower for further proceeding.
Facts:
Appellant was charged with the crime of rape with homicide of Khazie Mae
Penecilla, a minor, four years of age, choking her with his right hand. The
incident happened after appellant drank liquor. A neighbor, Leopoldo
Santiago found the victims body and the parents and police were
informed. Appellant was living in his uncle's house some five arm's length
from Penecilla's house. Appellant was arrested and interrogated by PO3
Danilo Tan. He verbally confessed his guilt without the assistance of
counsel. On the basis of his uncounselled verbal confession and follow up
interrogations, the police came to know and recovered from appellant's
house, Khazie Mae's green slippers, a pair of gold earrings, a buri mat, a
stained pillow and a stained T-shirt all of which were presented as evidence
for the prosecution. He was arraigned with the assistance of Atty. Rogelio
Antiquiera of the PAO. Appellant pleaded guilty. The RTC convicted him.
Hence an automatic review for the imposition of death penalty.

Issue: Whether or Not the death penalty proper.

Held:

No. The records do not reveal that the Information against the appellant
was read in the language or dialect known to him. The Information against
the appellant is written in the English language. It is unknown whether the
appellant knows the English language. Neither is it known what dialect is
understood by the appellant. Nor is there any showing that the Information
couched in English was translated to the appellant in his own dialect before
his plea of guilt. The RTC violated section 1(a) of Rule 116, the rule
implementing the constitutional right of the appellant to be informed of the
nature and cause of the accusation against him. It also denied appellant
his constitutional right to due process of law. It is urged that we must
presume that the arraignment of the appellant was regularly conducted.
When life is at stake, we cannot lean on this rebuttable presumption. There
could be no presumption. The court must be sure.
The trial court violated section 3 of Rule 116 when it accepted the plea of
guilt of the appellant. Said section requires that the court shall conduct a
searching inquiry the voluntariness and full comprehension of the
consequences of his plea and require the prosecution to prove his guilt and
the precise degree of culpability. The accused may also present evidence in
his behalf. The trial court simply inquired if appellant had physical marks of
maltreatment. It did not ask the appellant when he was arrested, who
arrested him, how and where he was interrogated, whether he was
medically examined before and after his interrogation, etc. It limited its
efforts trying to discover late body marks of maltreatment as if
involuntariness is caused by physical abuse alone.
Further, there are physical evidence to prove Khazie was raped. These
consists of a pillow with bloodstains in its center 14 and the T-shirt 15 of
the accused colored white with bloodstains on its bottom. These physical
evidence are evidence of the highest order. They strongly corroborate the
testimony of Luisa Rebada that the victim was raped.These are
inadmissible evidence for they were gathered by PO3 Danilo Tan of the
Iloilo City PNP as a result of custodial interrogation where appellant
verbally confessed to the crime without the benefit of counsel.